Opinion
Argued February 20, 1981
Decided April 2, 1981
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, RICHARD D. HELLER, J.
Robert Abrams, Attorney-General (Richard J. Dorsey and Shirley Adelson Siegel of counsel), for appellant.
William J. Murphy for respondents.
MEMORANDUM.
The judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the judgment of the Court of Claims dated October 25, 1972 reinstated.
Claimants sued the State of New York for alleged breaches of a contract for the reconstruction of a 2.3 mile section of road in Niagara County. The Court of Claims determined that all the causes of action asserted should be dismissed, and except with respect to the cause of action pertaining to claimants' "borrow" operation, the Appellate Division agreed. It is only this cause of action which has been presented for our review (see CPLR 5601). We hold on this record that no basis for recovery has bee1n established.
The basic contention of the claimants is that the State incurred a liability through its conceded failure to include certain borrow requirements on the earthwork summary the State provided for use in bid preparation. This contention is erroneous due to specific language on the earthwork summary itself which states: "Conditions and quantities as shown on the table * * * are not to be deemed or considered by the contractor as a warranty or a representation * * * of actual field conditions or quantities. Borrow may be necessary even when not shown on the excavation table. Borrow, if required, shall be paid for under the regular item of unclassified excavation, unless specifically provided for in the contract."
Thus the contract documents made clear that claimants were not entitled to rely solely on the earthwork summary, and that if additional borrow was to be required, claimants were only entitled to be paid for it at the unclassified excavation rate under which rate payment to claimants actually was made.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.
Judgment appealed from and order of the Appellate Division brought up for review reversed, etc.