Derouin's Plumbing & Heating, Inc. v. City of Watertown

71 A.D.2d 822, 419 N.Y.S.2d 390, 1979 N.Y. App. Div. LEXIS 13051

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 13, 1979
• Status: Published

Opinion

—Judgment unanimously reversed, on the law and facts, with costs, complaint reinstated, and judgment granted in favor of plaintiff in accordance with the following memorandum: Although the complaint did not specifically mention rescission, it is plain that this is the type of relief the plaintiff sought. At the close of the evidence the trial court should have treated this case as an equitable action for rescission and we now do so (CPLR 5522). Upon the trial record before us, plaintiff has proved that he is entitled to have the contract canceled and his bid security returned (Balaban-Gordon Co. v Brighton Sewer Disk No. 2, 41 AD2d 246). The evidence shows that Leon Derouin made a clerical error in transposing the total amount of his bid from the recapitulation sheets to the bid proposal sheet. As a result, plaintiff’s bid was understated by $100,000. This excusable clerical mistake was material and of such an amount as to make enforcement of the contract unconscionable. In addition, the city was aware of the mistake approximately three weeks prior to the time it awarded the contract and could have rectified the situation by awarding the contract to one of the other bidders. Under these circumstances, the city "should not be allowed to enforce the bargain” (Balaban-Gordon Co. v Brighton Sewer Dist. No. 2, supra, p 251). (Appeal from judgment of Jefferson Supreme Court— construction contract.) Present—Cardamone, J. P., Hancock, Jr., Schnepp, Doerr and Witmer, JJ.