
    Terry Contracting, Inc., Appellant-Respondent, v. State of New York, Respondent-Appellant.
   Memorandum: Claimant appeals from so much of the judgment of the Court of Claims as dismissed its second and fourth causes of action. The State cross-appeals from so much of the judgment as allowed $3,591.23 interest on final payment alleged in the first cause of action and awarded claimant $6,706.53 on the third cause of action. The proof amply sustains the judgment of the Court of Claims on the second, third and fourth causes of action and therefore the judgment in this respect must be affirmed. The proof does not support the judgment on the first cause of action and the judgment in this respect must be reversed. The work was finally accepted on October 20, 1961, but claimant did not submit the affidavits required by article 3 of the contract, section 38 of the Highway Law and section 220-a of the Labor Law as a condition to final payment until October 24, 1962. The State’s tender of payment on November 2, 1962 was refused. Unlike Merritt-Chapman & Scott Corp. v. State of New York (25 A D 2d 455) relied upon by the court, the delay between acceptance and tender of final payment was caused by claimant and not occasioned by the “ ineptitude ” on the part of the representatives of the State. Moreover, claimant did not allege in its first cause of action that unreasonable delay was occasioned by the State but merely alleged that the claim arose on November 2, 1962. This is the date on which the tender was made. The contract provided that refusal to accept the final payment as tendered constitutes a waiver of any right to interest thereon. In these circumstances, the court erred in allowing interest in the sum of $3,591.23 from October 20, 1961. (See Wood v. State of New York, 12 N Y 2d 25; Yonkers Contr. Co. v. New York State Thruway Auth., 26 A D 2d 766.) (Appeal and cross appeal from judgment of Court of Claims, in an action for damages for breach of contract.) Present — Williams, P. J., Goldman, Henry, Del Veeehio and March, JJ.  