New York Appellate Court Holds That Affidavits Can Cure Pleading Defects and Extrinsic Evidence Permitted When Contract Clause Is Ambiguous

Servidone, Inc./B. Anthony Constr. Corp., J.V. v. State of New York, No. 2016-05238, 2019 BL 7232 (App. Div., 2d Dept. Jan. 09, 2019)

cahills_thumb
Sophia L. Cahill

Servidone, Inc./B. Anthony Construction Corp., J.V. (the “Contractor”) and the New York State Department of Transportation (the “DOT”) entered into a construction contract to reconstruct and replace bridges on Route 59 in New York State. The Contractor retained L.M. Sessler Excavating & Wrecking, Inc. (the “Subcontractor”) to perform the demolition and disposal portion of the project.

Continue reading “New York Appellate Court Holds That Affidavits Can Cure Pleading Defects and Extrinsic Evidence Permitted When Contract Clause Is Ambiguous”

Federal Court in New Jersey Holds That Failure to Timely File an Affidavit of Merit Dooms Owner’s Claim for Breach of Contract Against GeoTech Companies

Frontier Dev. LLC v. Craig Test Boring Co., 2017 U.S. Dist. Lexis 149950 (D.N.J. Sept. 15, 2017)

On September 15, 2017, the Federal District Court for the District of New Jersey dismissed plaintiff’s, Frontier Development LLC’s, complaint for breach of contract against defendants, Craig Test Boring Co., Inc. and Craig Testing Laboratories, Inc., on the grounds that plaintiff failed to timely file an affidavit of merit as required by New Jersey statute.  The case is a reminder that plaintiffs making claims that sound in professional negligence must be aware of state statues requiring the submission of an affidavit of merit.

Plaintiff was the developer of a commercial building in Egg Harbor Township, New Jersey.  To prepare the site for construction, plaintiff was required to determine the depth of the topsoil it would have to remove and whether the soil beneath the topsoil was stable enough to support the foundations.  To do so, plaintiff engaged the services of defendants to perform geotechnical testing and prepare a soil boring report.  After receiving the report from the defendants and implementing the report’s recommendations, plaintiff claimed that the report’s conclusions were faulty and, as a result, plaintiff removed an excessive amount of topsoil and loose ground underneath the topsoil causing unnecessary delays and construction costs. Continue reading “Federal Court in New Jersey Holds That Failure to Timely File an Affidavit of Merit Dooms Owner’s Claim for Breach of Contract Against GeoTech Companies”