Balport Const. Co., Inc. v. New York Telephone Co.
| Decision Date | 09 November 1987 |
| Citation | 521 N.Y.S.2d 18,134 A.D.2d 309 |
| Parties | BALPORT CONSTRUCTION, CO., INC., Appellant, v. NEW YORK TELEPHONE COMPANY, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Altieri, Kushner, Miuccio & Frind, P.C., New York City (Alexander A. Miuccio, of counsel), for appellant.
John M. Clarke, New York City (Saul Scheier and Martin J. Murtagh, of counsel), for respondent.
Before WEINSTEIN, J.P., and RUBIN, KOOPER and SULLIVAN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover the balance due under a written construction contract, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Slifkin, J.), dated April 22, 1986, which, after a nonjury trial, is in favor of the defendant and against it.
ORDERED, that the judgment is reversed, on the law and in the exercise of discretion, and a new trial is granted, with costs to abide the event.
This action arises from a contract dispute between Balport Construction Co., Inc. (hereinafter Balport) and the New York Telephone Company (hereinafter NY Tel). Balport claims that the terms of the written contract at issue entitle it to receive payment for certain work it performed under the contract. While NY Tel does not deny that the work was satisfactorily completed, it maintains that payment for the disputed items was included in the sum already tendered to Balport.
In a letter dated September 12, 1980, NY Tel invited Balport, a firm included on a list of qualified prospective contractors used by NY Tel for bidding on its construction projects, to submit a bid on a certain project to install underground conduits and manholes. Together with its invitation to bid, which expressly advised prospective bidders to familiarize themselves with NY Tel's specifications, terms and conditions, which, as qualified contractors, they were required to maintain on file, NY Tel forwarded to Balport a bid form, which stated that "General Specifications for above items are contained in 'Specifications for Installation of Manholes and Conduits', lastest [sic ] revision, and shall apply except where superseded by Special Notes or Specifications for this contract".
After reviewing the bid invitation and form, Balport estimated the cost of the job, completed the bid form and submitted the bid to NT Tel on September 26, 1980. Balport's bid was accepted and the contract, designated a "Contractor Order", was signed by NY Tel and Balport on October 2, 1980, and October 7, 1980, respectively. By its express terms, the contract makes reference to and incorporates certain contract specifications, terms and conditions as follows:
"DRAWINGS AND SPECIFICATIONS which are hereby made a part of this contract: New York Telephone Company--Contract Specifications, Terms and Conditions for the Installation of Conduit and Manholes, Dated June, 1971--Last revised January, 1973 Specifications accompanying the bid and Print 3888--101, 102, 103, 104, 105, 106.
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"This contract expressly includes all of the 'Contract Terms and Conditions' and Special Conditions attached hereto, together with the Drawings and Specifications, if any, above enumerated; all of which are as fully a part of the contract as if hereto attached or herein repeated * * * This contract contains the entire agreement between the parties and may not be modified except in writing and duly executed by both parties" (emphasis added).
That portion of the contract which states that the last revision to the specifications was made in January of 1973 is the focus of the parties' dispute. In fact, the Contract Specifications were last revised in June 1980 with an interim revision in September 1979.
NY Tel maintains that the 1979 revision governs the payment dispute. Balport, while acknowledging that it had received and consulted the more recent revisions, in accordance with its obligations as a qualified contractor, argued that the specific wording of the contract, as well as the nature of the contract, caused it to disregard the substance of the 1979 revision and that, by the terms of the contract, it was entitled to payment for the disputed items.
By summons and complaint dated December 22, 1981, Balport alleged that pursuant to the contract, it performed work, labor and services in the amount of $622,310.63 and although due demand was made therefor, the defendant refused to pay the sum of $126,101.20. The defendant's answer consisted of denials and alleged that the plaintiff was fully and completely paid all amounts due.
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