DECISION This breach of contract claim arises out of a contract between claimant, the general contractor, and defendant, New York State Department of Transportation (DOT), regarding a project to reconstruct and replace bridges on Route 59 in Rockland County. Claimant seeks additional compensation from DOT, on behalf of claimant’s subcontractor, L.M. Sessler Excavating & Wrecking, Inc., that had subcontracted to perform demolition and debris disposal under the contract.1 Claimant alleges that, during the second construction season of the contract, there was a significant change in the scope and character of the work. The change alleged is due to Rockland County’s enforcement of its Flow Control Law (Local Law No. 2-2008 of County of Rockland). The Flow Control Law required that the subcontractor dispose of the demolition debris, in accordance with the Flow Control Law requirements, solely at a Rockland County owned facility and to pay Rockland County a fee for the disposal. Claimant argues that the additional costs incurred by the subcontractor and the loss of the opportunity to obtain compensation for the demolition debris was a significant change under the terms of the contract which entitles claimant to additional compensation. The trial of this claim was unified, addressing both liability and damages. BACKGROUND In 2010, during the first construction season of performance under the contract, demolition debris was hauled to MRO Pump & Tank, Inc. (MRO), a privately-owned permitted site, that paid compensation to the subcontractor for the debris (Court’s Ex. 2, 24). On or about March 25, 2011, during the second construction season, claimant and the subcontractor advised DOT that the Rockland County Solid Waste Management Authority had provided notice that it would enforce Rockland County’s Flow Control Law for the demolition debris on the project and require the subcontractor to dispose of the debris solely at a Rockland County owned facility and pay Rockland County fees for the disposal. The subcontractor complied with the Flow Control Law from March 25, 2011 through April 20, 2011 and paid disposal fees to Rockland County. Claimant commenced the instant action against the State for additional compensation under the contract. The State moved for summary judgment dismissing the claim on numerous grounds, including that claimant had failed to allege the specific contract provisions which DOT had allegedly breached. Claimant opposed the motion and cross moved for summary judgment. Claimant argued, inter alia, that Rockland County’s enforcement of its Flow Control Law constituted a significant change in the character of the work warranting additional compensation under the contract and Section 104-04 of the Standard Specifications, incorporated into the contract. Additionally, claimant argued that Section 107-01 of the Standard Specifications does not bar recovery because it requires compliance with only applicable ordinances. Claimant also argued that, pursuant to the contract and Section 107-10 of the Standard Specifications, demolition debris constituted surplus and used materials, which became the property of the contractor. The Court of Claims granted the State’s motion for summary judgment dismissing the claim for failure to state a cause of action and denied claimant’s cross motion for summary judgment as moot (A. Servidone, Inc./ B. Anthony Constr. Corp., J.V. v. State of New York, UID No. 2015-029-082 [Ct Cl, Mignano, J., Nov. 6, 2015]). Claimant appealed. The Appellate Division modified the order of the Court of Claims by substituting the provision granting the State’s motion for summary judgment with a provision denying the State’s motion and, as so modified, affirmed the order of the Court of Claims (A. Servidone, Inc./ B. Anthony Constr. Corp., J.V. v. State of New York, 168 AD3d 648 [2d Dept 2019]). In it’s analysis of the matter, the Appellate Division found that there was an ambiguity in the terms of the contract and thus there was an issue of fact which precluded an award of summary judgment to either party. Specifically, the Appellate Division found: “[h]ere, the contract required the claimant to comply with all applicable laws, with the costs of compliance included in the contract price. However, the contract also contained specific provisions regarding the disposal of waste at permitted facilities, which acknowledged the value of removed waste to the claimant as a commodity that could be sold to permitted facilities for beneficial reuse, recovery, or recycling purposes. The contract provided that nothing therein was intended to prevent the claimant from removing the waste to appropriate facilities for such purposes. Additional disposal site requirements were listed only for Nassau and Suffolk Counties and the Adirondack Park. Contrary to the determination of the Court of Claims, these provisions raised an ambiguity as to whether the claimant would be required to deposit waste in Rockland County inasmuch as no Rockland County waste facilities existed at the time the parties entered into the contract, thereby permitting extrinsic evidence of the parties’ intent. The claimant submitted evidence by way of affidavits to the effect that, at the time of the bid, Rockland County had no facility for the recycling of concrete and was not enforcing the Flow Control Law with regard to any DOT projects. The claimant also submitted a letter from the DOT to the RCSWMA that took the position that the project was immune from the Flow Control Law. In addition, a change order issued by the DOT under Highway Law §38, which provides for the alteration of contracts due to ‘unforeseen cause[s],’ expanded the project site to permit on-site disposal so as to avoid the costs of compliance with the Flow Control Law. The State failed to controvert this evidence that the means of compliance anticipated at the time of the contract were not the means of compliance that later arose when the Rockland County facility opened, which raised a triable issue of fact regarding the scope of the work and whether this was a ‘significant change in the character of work’ that would entitle the claimant to additional compensation under the contract, precluding an award of summary judgment to either party [citations omitted]“ (id. at 650-651). By Order filed on February 1, 2019, the Hon. Richard E. Sise, Acting Presiding Judge of the Court of Claims, transferred the claim to the Individual Assignment Calendar of the Hon. Walter Rivera. Thereafter, a trial was conducted to determine whether the requirement to dispose of the construction debris solely in the Rockland County facility in accordance with the Flow Control Law and pay fees to Rockland County for such disposal was a significant change in the scope and character of the work which entitles claimant to additional compensation under the contract and the Standard Specifications incorporated into the contract and, if so, what amount of damages is appropriate. The parties submitted a STIPULATED SET OF FACTS, dated November 14, 2019, and an AMENDMENT TO NOVEMBER 14, 2019 STIPULATION, amending paragraphs 24, 25 and 39 of the STIPULATED SET OF FACTS (Court’s Exs. 1, 2). The facts, as stipulated by the parties, are as follows. At the time of the contract bid and when the parties entered into the contract, Rockland County did not have a designated facility to receive the construction debris generated by the project (Court’s Ex. 1,
