you're in the kitchen and we'll hear the next case five star versus liberty mutual a good good morning may please the court my name is andrew richards for the appellant we have here is simple simply an excessively stringent application of a general rule by a little work yeah we haven't i haven't lost that close to being electrocuted in two or three years now so not but seriously it it seems that from my personal it's we will back in two thousand and twel into this building and yet the work here seems to start from shortly before then and run on a couple years after i'm just kind of curious about i cannot answer that  point i could i could assume based on my knowledge of twenty nine years of construction law that you moved in and work was being worked around you that's why i have to assume i like i can answer that question for sure i could give you some deposition transcript later on though ok so as i start out by saying i believe this is an excessively stringent application of a general rule of law we're talking about pleading here not summary judgment not a trial it's a pleading despite the fact that it paul height that three opportunities to play the claims that's right ironic and what i've been trying to figure out is you're claiming that you should have gotten paid more than you were paid your roughly six hundred thousand i don't see anywhere in the complaint what the contractual basis is for that i mean you know where's the complaint pleads proposed change orders but it doesn't plead that that anywhere except it means someone must have been accepted because we're paid twelve million more than the contra riginal contract price but what is the are contractual basis for the alleged u it's very simple your honor in both the first amended complaint and second made a point which contained more facts than i've ever seen in a construction litigation complaint in twenty nine years we not only list the sub contract itself the original sub contract value we list all the change or is not just the global amount we list all the changes that was signed by the appellate we also list all the proposed change orders which were for work that was performed there in dispute they did proposed change order back to us because they must disagree that it's extra to the contract it's not very complicated it's almost second amendment play we listed all the extra work that was not agreed upon but would you characterize those change orders as proposed change or correct you don't allege that they were accepted i mean was there ever a mino of the minds on those change orders on the on some yes some no it's very clear that's ones we don't know be a meeting of the mind on the request to change and then a failure to pay for correct so and what is that alleged as to the six hundred seventy seven thousand dollar deficiency what's alleged is there is there isn't a particular you have two sets of changes your honor i hope i want to be sure on the same page you have change orders which by definition are signed by both parties an agreed upon that was for work that was outside the scope of the original contract and that's listed if you look at the second amendment compliant that some paragraph ten now we don't list which one of those in particular was not paid because they don't work like that they were on a payment application they just  total amount was not paid we can't tell anyone which ones they decided they were going to pay and not pay we can't do that that were signed by both yes paragraph the total amount on those appellate and perform for five years are as follows that these change orders or change or is issued by the appellate they know exactly what they are so you can't look at it as as if they didn't pay one of those change orders we don't know which ones they don't want to pay how do we know that's the we couldn't know that all we know is they agreed to pay it we did the work they should have paid all of them then your honor if you turn in the second amended complaint to a two five three paragraph twenty four we list all of the other chip we call them proposed change or resign your your honor very simply the only difference between the proposed change orders and change of orders proposed change orders they don't necessarily agree that for work outside the contract that the the list of the proposed changes orders again this is more information i've had cases before you when you were lower court your honor you you've seen cases which played a lot less than this we've listed all these these change numbers here that i propose what's very interesting there's a lot of detail a lot of what i'm trying to figure out is is six seventy seven alleged deficient what is the seventy that's correct your honor if you add that to the original contract minus the payments that you're breach of contract balance it's that simple we also have the extra work claims which all the from for the proposed change orders now these documents what's very very interesting is that the a pelleas opposition to this appeal they don't come out and say we don't know what the nature of these claims of for we don't know what they're saying they can't because they know exactly what they're for these designations in the proposed change these documents were given to them they just don't agree as i said before this is the amount of pleading that is required by by the lower court and first i have to ask what what should i  put these through if you look at superior court case we cite there was much less the original complaint would have sufficed on the under the superior court case and quite frankly at this point to add any more facts we would have to bring an expert witness which is not done through the f discoveries done at this point we're being asked to lay out all the facts of the case if we're going to trial without any discovery and i have to say twenty nine years of construction legation the first amend corrina savannah cases created those for the four exceptions to the rule that bars don't damage delay damage claim and this is a pleading we've laid out what they did wrong the appellate they don't oppose us by saying we didn't do this all they said was they live why aren't aren't they ordinary garden variety delays that you find construction projects all the time not when you say we're supposed to do your work in two years and it takes five absolutely not your honor absolutely not and it is too early in a stage of litigation to dismiss a delayed damage claim based on just the fact that the sub contract has that you there were no cases cited by the appellee which mirrors this and shows how is this missed  pleading stage it is unfair it's not the introduction justice to do that we've laid out enough for pleading to show that we are entitled to have our day in court to assess and claim a delay damages good morning your honor steven rosenberg for caldwell iran an this is not an eighty five thousand dollar dispute over a home remodel this is a case as your honor pointed out this very quiet house the original contract for the electrical work was forty three million dollars and there were change waters there were significant change waters and those change orders encompassed the additional time a council has pointed out that in the proposed second i'm in the complaint with paragraph ten lays out thirteen million dollars worth of change orders signed by both sides so the allegation is that these were approved by both sides and if you add up the thirteen point four million in the original forty four million and you get a number that is above what was paid why doesn't that state a claim at least for that six hundred thousand dollars we your honor and my adversary said you can't identify what it is that wasn't paid that's not completely accurate each time a request for payment is put in a what we call a pay and the sub contractor has to put in a document there is one if you look at a forty three of the record and the numbers in a forty three this is the last pay requisition that five star p in those numbers are the six forty three at most there are about two hundred fifty thousand dollars so that's but now you're looking at the evidence and you going beyond the pleading i mean the pleading could be wrong but on it we have to accept its face at this point right as to the six hundred thousand dollars perhaps but we're also talking about twenty three million dollars which they are claiming for delay the six hundred seventy seven thousand dollars claim would i would say it's unfair to ask me that question i'm not sure why it's unfair but i'm asking it anyway your honor i  have met the burden on on that one claim well though they could have specified and should have specified where it came from but you're right your honor and broad terms they did a that they don't come close to complying with the ruling on the twenty three million dollars on a twenty three million is nothing other than their anticipation personal anticipation and you know the term an anticipated in the cases that were cited means it's a mutual non anticipation of delay this delay first of all was anticipated because there's  state court of appeals decisions as to no one contemplated delays what does that mean well in the in the in the cases they were extraordinary interfering matters in new york state cases they were the extraordinary interfering matters that that neither side that neither side could have anticipated and by the way that there is no real delay here they say that this continued until two thousand and fourteen the only thing that happened in two thousand and thirteen and two thousand and fourteen or actual or whether there was a delay a real delay your honor i'll go back to the language of the statute and the fact is that they pleaded nothing none of the elements nothing to support their bare bones setting forth of the principles from those cases no support for their claim and there's another significant thing in the record if you look at one of their pay water at two at page two thirty two now they say they are entitled to twenty three million for delay claims if you owners will look at page two thirty two within the change orders they list of that something like thirteen million dollars that your honor mentioned education i'm in there looking at the biggest item is it's a twelve million six hundred seventy two thousand six case change order list this proves their entire case and they're aligned on it they've incorporated it into their plating they can't be pleading twenty three million if they say that it's twelve million and they can't get it twice your honor for twenty three million dollars claim something more has to be pleaded it can't just be us i didn't think it would take this long i didn't think it would take this long it's not a question of the law is not oh the plaintiff can recover if the plaintive miscalculated how long it would take to do a project the law is if something extraordinary interferes beyond the comprehension nationally of both parties and could not have been anticipated by both parties that's the exception unless you've got malfeasance willful disregard these other terms that clearly haven't been said wars haven't been well other then they  because you were talking about whole lot of facts i understand that you believe me that everything that's attached to the complaint referred to it can be considered on this but  depending on the panel it seems but this this really this is a twenty three million dollar claim there has to be more flesh on the bone when you make a claim like that we've had to go through three rounds now of motion practice and your honor is right you know if the survives what's going to happen next it will be a motion for summary judgment we should not have to do that there should be some at least argument in the papers in the at all apply plausible claim and moreover if you look at the fact that the first complaint pleaded that the bad guys were both caldwell and the government he had to say and then somehow either the g s a was we just argued well i didn't your honour's and my counsel to my right just argue about facts the last seven minutes all facts no one's discussing law it proves my point this is a leading this is z instead of the only person using conclusory allegations is the appellee here everything is about the facts yes what's on contemplated while the case law is very clear some things are on contemplated some are excessively contemplated and that is for the trier of fact not every case gets the smiths when you say it's on contemplated like the there's nothing sign an appellate paper supporting that hence we need discovery we've alleged in these pleading a pleading your honour's now one thing i want to mention alleged in the second amendment complaint other than the kind of poor performance failure co ordination and supervision that you ordinarily see construction projects but there's nothing to determine whether it's ordinary or not just the trier of fact you have to go through discovery this is a pleading how should i plead it's excessive the construction project took three extra years is because of the excessive mismanagement of a vision that says in the event of delays your own money right goes both ways your only remedy is an extension of the completion da except for the fore exceptions to the no damage for the lay rule and again i don't understand how we dismiss this on a motion on a pleading and talking about the twelve twelve million dollars equitable  dash for twenty three on page eight to thirty two that's actually five star actually submitted a request for a change order for some of the late charges they don't agree to it but there's more cos we just didn't submit them in the form of a change or but the amount of facts pled here are more than sufficient to to satisfy the pleading requirements of the federal court iran and you for the questions thank you