Snyder Construction Co. v. State

OPINION OF THE COURT Sweeney, J. P. The underlying action is one by claimant to recover for the State’s alleged breach of a contract for reconstruction of portions of Routes 5 and 13 in Madison County. Concededly, all moneys had been paid under the contract except $41,920.69. The Comptroller, pursuant to section 220-b of the Labor Law, ordered the sum of $11,000 withheld from the contract payments. Accordingly, the State sent claimant a check marked "final” in the sum of $30,920.69. Claimant cashed this check. The State contends that the release provisions of the contract, and section 145 of the State Finance Law, were triggered. Pursuant to these provisions, claimant, after accepting final payment, is barred from bringing this action unless a verified claim is served within 40 days after the mailing of the final payment and the claim is filed with the clerk of the Court of Claims and Attorney-General within six months of the mailing of the final payment. Concededly, neither was done here. Consequently, the State argues the action is untimely. The Court of Claims denied the State’s motion to dismiss and also claimant’s cross motion for partial summary judgment. Only the State has appealed. Initially, we note, in reply to the State’s contention, that if the payment was not a final one then neither the contract release provision nor section 145 came into play. Consequently, subdivision 4 of section 10 of the Court of Claims Act would apply, and claimant has met these time limits. While the contract does not define "final” payment, section 109-12 of the Standard Specifications is of some significance and reads as follows; "109-12 final estimate. The Commissioner will [52] approve a final estimate for final payment based on the final agreement as prepared and approved by the Regional Director, less previous payments and any and all deductions authorized to be made by the Commissioner under the contract. Payment pursuant to such ñnal estimate less any deductions authorized to be made by the Comptroller under the contract shall constitute the ñnal payment and shall be made by the Comptroller. ” (Emphasis supplied.) A resolution of the issue narrows to whether the $11,000 withheld by the Comptroller is a deduction within the meaning of section 109-12. We are of the view that it is not. The critical word "deduction” is not defined in the contract. It connotes a permanent retainage, whereas the word "withhold” connotes a temporary suspension. Concededly, claimant may eventually be entitled to some portion of the $11,000. Thus, we are here concerned more with a withholding than a deduction. Furthermore, the Department of Labor referred to the sum as being "withheld” and the Comptroller acted pursuant to subdivision 2 of section 220-b of the Labor Law, which authorizes a withholding of funds where the contractor does not admit liability, as here. Subdivision 1 of the same section, on the other hand, authorizes a deduction of sums admitted by the contractor to be due and owing by him. Finally, the State’s reliance upon Buffalo Elec. Co. v State of New York (14 NY2d 453) is misplaced in that the check in question in that case was in fact the final payment due under the contract. There must be an affirmance. The order should be affirmed, with costs.