Calabrese v. Ontario County
| Decision Date | 12 July 1977 |
| Citation | 397 N.Y.S.2d 493,58 A.D.2d 1008 |
| Parties | Carmen CALABRESE, Respondent, v. COUNTY OF ONTARIO, New York, Appellant. |
| Court | New York Supreme Court — Appellate Division |
David G. Retchless, County Atty., Max Cohen, Canandaigua, for appellant.
Bond, McDonald & Toole, William J. McDonald, Geneva, for respondent.
Before MOULE, J. P., and CARDAMONE, HANCOCK, DENMAN and WITMER, JJ.
Defendant County of Ontario seeks to set aside a jury verdict awarding plaintiff $81,000 on a contract. Plaintiff Calabrese entered into a contract with the County of Ontario to operate and restore its sanitary landfill. Soon after Calabrese began performing under the contract, a dispute arose over the payment terms. Calabrese claimed that his minimum guaranteed monthly payment was $9,000, while the County took the position that the minimum monthly payment was $4,500, that is, $.90 per cubic yard for a minimum of 5,000 yards. The dispute is grounded in the different interpretation each gives to the following term in plaintiff's bid proposal: "between 0 and 5,000 cubic yards per month for 4,500.00 dollars and 90 cents per cubic yard (the owner guarantees payment for a minimum of 5,000 cubic yards per month whether or not it arrives at the landfill.)" Because of the ambiguity of that term, the trial court ruled that the parties could offer proof as to the meaning and intent of the parties.
The testimony of plaintiff and his former partner indicated that their bid was intended to be a $4,500 monthly guarantee plus 90 cents per cubic yard for the first 5,000 cubic yards, or a total of $1.80 per cubic yard for the first 5,000 yards. They showed further that an estimate done for the County by an engineering firm indicated that it would cost the County $1.82 per cubic yard to perform the work itself. The evidence showed that even though the payment term was questioned at the bid opening, no one from the County ever asked Calabrese to clarify its meaning. Plaintiff testified that he did not become aware of the differing interpretations of the payment term until February 1975 when Joseph Carver, Ontario County Environmental Coordinator, presented him with a claim voucher for his signature. Seeing that the voucher was for $4,500, Calabrese asked Carver about the 90 cents per yard guarantee, but Carver told him that $4,500 was all he would get. Plaintiff testified that he signed that voucher and subsequent monthly vouchers for $4,500 because if he had not signed them, he would not have been paid and would not have been able to continue operating. He stated that he repeatedly asked the County about the additional $4,500 but admitted that he never entered a written protest until August of 1975, when he made a written protest on the voucher.
Witnesses for the County testified that they had spoken with plaintiff at the time the bid was entered, that he had stated that the $4,500 figure represented 90 cents per cubic yard times 5,000 yards and that they understood that that was the bid: 90 cents per cubic yard. The County also introduced a document entitled "Voucher Payment Procedure" which contained a notation that the minimum payment due the operator (i. e., plaintiff) was $4,500 and plaintiff admitted that he had received a copy of that document when he...
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...to assume, however, that the jury adopted that view of the evidence most favorable to the prevailing parties (Calabrese v. County of Ontario, 58 A.D.2d 1008, 397 N.Y.S.2d 493; Colegrove v. City of Corning, 54 A.D.2d 1093, 388 N.Y.S.2d 964). Anthony testified that he was playing in the park ......
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Billiar v. Minnesota Mining and Mfg. Co.
...it is clear that the jury did not reach its conclusion on a fair interpretation of the evidence, Calabrese v. Ontario County, 58 A.D.2d 1008, 1009-10, 397 N.Y.S.2d 493, 495 (4th Dep't 1977); Marshall v. Mastodon, Inc., 51 A.D.2d 21, 23, 379 N.Y.S.2d 177, 180 (3d Dep't 1976), or if a contrar......