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Decided on December 31, 2003
Civil Court Of The City Of New York, Richmond County,

Index No. 13RTS2003
ERIC N. VITALIANO, J.
This dispute arises out of a major construction project let at the College of Staten Island by the Dormitory Authority of New York State. Plaintiff The Sawcutter Corporation ("Sawcutter") was a subcontractor of defendant DCI Danaco Contractors, Inc. ("Danaco"), one of the project's prime contractors. Sawcutter entered into an agreement to remove certain building materials and provide certain core concrete drillings for duct and pipe penetrations on behalf of Danaco. Sawcutter brings suit claiming that it was not fully paid for the work it performed. Danaco denies that Sawcutter performed in accordance with the contract and counterclaims for the remedial action it contends it was forced to take on account of Sawcutter's defective duct penetrations. The suit is here on transfer from Supreme Court, Richmond County pursuant to CPLR 325 (d). With the plaintiff's claim on the surety bond against defendant Travelers Casualty & Surety Company set aside, the claim and counterclaim were tried to the Court sitting without a jury. The following constitutes the findings of fact, conclusions of law and the Decision and Order of the Court.
Because they are the most easy to dispose of, the Court will first address Danaco's counterclaim and the facts it has in common with any of Danaco's affirmative defenses. Other than the testimony of Dennis Nemick, Danaco's chief on-site manager for the College of Staten Island project, which parroted the naked assertion of defective performance alleged in the counterclaim, there was no proof of any work failure by Sawcutter. No proof was offered as to which penetrations were defective or in what ways they were defective. Mr. Nemick did proffer an excuse for the absence of any Danaco business records of the project, but Danaco made no effort through discovery or otherwise to attempt to reconstruct the missing records or to offer any other sort of proof as to the claimed defects. The counterclaim, therefore, must fail as does any defense rooted in the claim that Sawcutter's work under the contract was defective.
Next is the issue of variance. Though odd in a case where the defendant neither [*2]demanded a bill of particulars nor sought to refine the plaintiff's claims through interrogatories, Danaco did object to Sawcutter's motion at the close of its case to conform its pleading to the proof. At the nub was the offer in evidence of unpaid invoices several thousand dollars in excess of the sum claimed to be unpaid in the complaint. The additional sums came to light months before trial. They were known, it is undisputed, both by plaintiff's and defendant's counsel. Sawcutter did not formally move to amend the complaint at any time prior to trial. Danaco did not seek any additional discovery as a result of the revelation. Danaco's claim of surprise at trial in such circumstance rings particularly hollow as does its claim of prejudice, which truly amounts to a plea about the increased exposure that is inherent in any such amendment regardless of the time it is made. With surprise and true prejudice wanting, the proof is entitled to the upper hand, see D. Siegel, New York Practice

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