Construction contracts are typically addressed by courts on case-by-case basis. When a dispute arises between parties to a construction contract it is typical for one party to argue that various payments are not required due to the other party’s failure to properly perform its duties. Often, the court is tasked with listening to the testimony of both parties in making a determination based upon what he or she is presented at trial. Obviously, the judge is not present on the construction site and cannot truly know what occurred between the parties. The judge can only rely on the presentations by both parties’ attorneys and on testimony of witnesses. The court with the jury’s assistance reviews the factual findings and applies the law.
In a recent unpublished decision, KS Engineering P.C. v. Tony Gomes Construction Co. Inc, the Appellate Division upheld the lower court’s decision awarding KS Engineering a payment of $23,000.00 based solely upon conclusions that the plaintiff had completed the first milestone in the contract despite the defendant’s testimony to the contrary.
In this case, the plaintiff entered into a contract with Gomes Construction to provide engineering services in connection with the construction project. The contract provided for payment of $23,000.00 to KS on completion of each of three specified milestones a dispute arose between the parties and KS was ultimately directed to stop working on the project. KS contended that it had completed the first milestone and was therefore entitled to the full payment of $23,000.00. Gomes disputed the claim, a lawsuit was filed and the case ultimately proceeded to trial. While the judge was not present at the construction site and was not prevue to the original conversation between the parties, he ultimately ruled that Gomes’s testimony that KS had not properly completed the first milestone lacked creditability and found in favor of the plaintiff. The Appellate e court affirmed.
This case highlights the fact that judges must rely on their own instincts and impressions made by testifying witnesses and other evidence presented. The legal system is not perfect but the courts generally a satisfactory job in determining the rights of parties in a construction contract.
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