Bilotta Const. Corp. v. Village of Mamaroneck

• Decision Date: 06 December 1993
• Citation: 199 A.D.2d 230,604 N.Y.S.2d 966
• Parties: BILOTTA CONSTRUCTION CORP., Appellant, v. VILLAGE OF MAMARONECK, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 966

604 N.Y.S.2d 966

199 A.D.2d 230

BILOTTA CONSTRUCTION CORP., Appellant, v. VILLAGE OF MAMARONECK, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Dec. 6, 1993.

Louis G. Imperato, Brooklyn (Gerard A. Imperato, of counsel), for appellant.

James J. Nolletti, Village Atty., Mamaroneck, for respondent Village of Mamaroneck.

Rumbold & Bress, White Plains (Frank A. Bress, of counsel), for respondent Blasland & Bouck Engineers, P.C.

Before SULLIVAN, J.P., and O'BRIEN, RITTER and JOY, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for breach of contract, negligence, and fraud, the plaintiff appeals from an order of the Supreme Court, Westchester County (Wood, J.), entered August 9, 1991, which granted the defendants' respective motions for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with one bill of costs.

The plaintiff brought the instant action against the defendant Village of Mamaroneck and the firm of defendant Blasland & Bouck Engineers (hereinafter the Engineers), which were hired by the Village to prepare bid documents for improvements to the public storm sewer system, claiming that the bid documents inaccurately described certain elevations which led the plaintiff to underestimate its bid. Based on the alleged inaccuracies, the plaintiff contends that the Village is obligated to pay for the unanticipated work under the contract and that the Engineers are liable for the cost of the work due to their negligence in preparing the bid documents. The plaintiff further claims that both defendants are liable for the cost of this work, as a result of fraudulent misrepresentations concerning the nature and scope of the work to be performed. The Supreme Court dismissed the complaint, and we affirm.

"The ultimate guide in determining whether or not the contractor is to be paid for extra work is the contract itself * * * [I]f the parties intended the contractor to rely upon its own investigation, no recovery for extra work may be had, absent a showing of fraud or misrepresentation as to existing conditions" (Savin Brothers v. State of New York, 62 A.D.2d 511, 515, 405 N.Y.S.2d 516, affd. 47 N.Y.2d 934, 419 N.Y.S.2d 969, 393 N.E.2d 1041; see also, Warren Bros. Co. v. New York State Thruway Auth., 34 A.D.2d 97, 99, 309 N.Y.S.2d 450, affd. 34 N.Y.2d 770, 358 N.Y.S.2d 139, 314 N.E.2d 878).

Here, the contract documents contain numerous clauses relieving the defendants of liability and requiring personal inspection of the contract site by the plaintiff. In particular, the contract states that "[t]he Contractor agrees that he shall neither have nor assert against the Owner or Engineer any claim for damages for extra work or otherwise or for relief from any...