College caught up in litigation over Science Complex construction

Nearly two years and over $115,000 in legal fees later, the College remains caught up in litigation over the Science Complex. Though construction was substantially completed in Spring 2003, three cases are winding their way through the courts about parts of the project.

In January 2003, the College filed suit against Paphian, the project contractor, and its insurer, Selective Insurance, arguing that Paphian made mistakes that led to a leaky roof in the Science Complex.

The College asserted damages of $991,683 against Paphian for its negligence in construction, and sought recovery from its insurer, Selective. Paphian said its termination from the project was unwarranted and that the mistakes were the fault of someone other than its company.

On July 26, the College entered an agreement with the defendants to refer the case to binding arbitration, so that the case could be heard by an attorney. According to the agreement reached between the parties, arbitration was to begin Sept. 7 before arbitrator Daniel O’Hern.

O’Hern is a former N.J. Supreme Court Justice, and is now special counsel to Becker Meisel, a Livingston-based law firm. Arbitration was to be completed by Sept. 30, but has been put off, according to Catherine Sokoloski, director of the office of Legal Affairs. A new date has not been set.

After the College terminated Paphian, it reached a takeover agreement with its surety company, Travelers Insurance. Travelers agreed to complete the project by hiring another contractor for $4,727,742, representing the remaining balance of the original contract that the College would have paid to Paphian.

According to the College’s attorney, Eugene Sullivan, cooperation between the College and Travelers broke down in June 2003 because of delays by Travelers’ replacement contractor, Daniel J. Keating. The College hired another contractor, RB Reynolds Contracting, to complete the punch list work for $255,320.

Travelers sued in October 2003, alleging in its complaint that the College refused to pay in accordance with the takeover agreement. It also accused the College of acting unreasonably in its dealings with Travelers, refusing to pay for extra work required by the contract, and providing incorrect information.

According to a letter written to Travelers from Brian Murray, director of the office of Campus Planning and Construction, Travelers said at a June 2 meeting that it had not agreed to perform outstanding work, including painting and the replacement of fume hoods in science labs.

“All you wanted to talk about was all the money you wanted under the takeover agreement,” Murray wrote to Travelers in the letter.

According to Murray, Travelers said it was entitled to $2.7 million total under the contract, or far above the $1,111,000 the College said was the adjusted contract balance. Murray said Travelers also wanted back $700,000 in a damage payment to the College.

All attempts to negotiate were unsuccessful.

The Travelers case has been moving along slowly. The parties consented twice to extend the period of time to review documents and exchange information. According to a letter by College attorneys, the College’s project file alone takes up over 100 boxes of paper and had to be sent out to an outside firm to be photocopied.

The document exchange is expected to end Jan. 31, 2006, and a trial date of Feb. 26 has been set before Superior Court Judge Mary C. Jacobson.

The third pending case, against the project’s engineers, Syska and Hennessy, is regarding the vibrations in observatories as well as heating and cooling problems.

Exchange of records in that case is scheduled to end Oct. 8, according to court records. The case file, however, was not available for review by The Signal.

College policy prevents College officials from speaking about pending litigation.

The Science Complex still faces problems, as the building was shut down for a few hours this past summer to fix a problem with the sewer ejector pit, which blew a gasket. The gasket was replaced.

Murray said it was “hard to say” whether the problem with the pit was related to the problems alleged in the ongoing litigation, or whether it was simply routine maintenance.

The building continues to operate under a temporary certificate of occupancy, which means not all the problems have been fixed.

But Murray said the remaining problems are minor.

Murray said less than five items remained until the department of Community Affairs issues a final certificate for the complex, and were as minor as a handle on one of the handicap bathroom stalls and a label on an automatic door.