Opinion
December 19, 1978
Order, Supreme Court, New York County, entered April 11, 1978, which denied that part of defendant's motion which sought to dismiss the second and third causes of action, unanimously, reversed, on the law and the facts and defendant's motion to dismiss those causes granted, without prejudice to repleading for a claim in the amount of $138,630, without costs or disbursements. The plaintiff construction company entered into a contract with the defendant City of New York for soil consolidation work on certain streets in Co-Op City in The Bronx. Because the work could not be completed by the date provided in the contract, the plaintiff requested an extension of time. In connection with granting the extension of time, the City of New York required a letter containing a release of all claims except "the items of claim which are hereby reserved and are set forth in the annexed Bill of Particulars." The bill of particulars shows a claim in the amount of $138,630. The second cause of action in dispute here is for damages of $100,000 for double handling of some of the fill because of the nonavailability of the work site. The third cause of action claimed $261,185 arising out of the need for additional fill. Plaintiff contends that it reserved a claim for additional fill but underestimated the amount required, and that its bill of particulars set forth the proper claims, and that the amount of money with respect thereto was tentative, and that by its release it did not waive its right to revise the amount of the claim reserved. The issue then is whether the bill of particulars should be considered as limiting only to categories or whether it limits to amounts as well. As we read the bill of particulars submitted in connection with the extension of time, it is specific as to the amount involved.
Concur — Kupferman, J.P., Birns, Fein, Lane and Sandler, JJ.