Costanza Construction Corp. v. City of Rochester

147 A.D.2d 929, 537 N.Y.S.2d 394, 1989 N.Y. App. Div. LEXIS 1221

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 1989
• Status: Published

Opinions

— Order modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Plaintiff was the low bidder on a public improvement contract on Alexander Street in the City of Rochester, and it was awarded the contract. It considered rock removal to be a small portion of the job, and it bid $25 per cubic yard to excavate rock, an amount which was below the actual cost. Job drawings, prepared by codefendant Passero, showed only about 20 cubic yards of rock in the area to be excavated, and specifications estimated about 100 cubic yards. In fact, over 600 cubic yards of rock were encountered. Plaintiff was paid the unit price for all rock to be removed. Special Term properly dismissed plaintiff’s claims for breach of contract, negligence, breach of warranty and equitable adjustment because the parts of the contract included in the record clearly include a disclaimer by the city of any responsibility for the accuracy or completeness of. information on the drawings concerning existing conditions, including rock, and obligate the contractor to satisfy itself as to site conditions and the work required. There is no merit to plaintiff’s contention that the actual amount of rock found constituted a cardinal change and altered the very essence of the contract (see, Depot Constr. Corp. v State of New York, 19 NY2d 109). Plaintiff argues that its time was too limited to make an in-depth inspection and that such an inspection would have been prohibitively expensive. Nevertheless, this is what plaintiff obligated itself to do by signing the contract (see, Foundation Co. v State of New York, 233 NY 177, 184-185; Savin Bros, v State of New York, 62 AD2d 511, 515, affd 47 NY2d 934). No authority is cited for plaintiff’s argument that such a contract is against public policy, and we reject it.

With respect to the cross motion of codefendant Passero, Special Term granted summary judgment dismissing Costanza’s claims against it except with respect to failure to disclose a 1932 sewer map which showed additional rock. The claims against Passero allege that Costanza reasonably relied on information supplied by Passero in the contract document with respect to the presence of rock. In view of the contract language, Costanza could not have justifiably relied on any information in the documents regarding rock, no matter what the source, and summary judgment dismissing the complaint as to Passero should have been granted.

All concur, except Doerr, J. P., and Lawton, J., who dissent in part, in the following memorandum.