LEBANON VALLEY LANDSCAPING INC v. TOWN OF MORIAH (1999)

Cross appeals from an order of the Supreme Court (Dawson, J.), entered June 1, 1998 in Essex County, which denied plaintiff's and defendant's motions for summary judgment.

Plaintiff was the successful bidder on a project to replace a water distribution and sewer collection system for 79 homes in the Town of Moriah, Essex County.   Pursuant to the contract, plaintiff agreed to install 2,000 linear feet of six-inch house service laterals at a price of $21.50 per linear foot.   Also, plaintiff was to provide approximately 200 sanitary service connections for $395 per unit.   While the project was in progress, the parties agreed to a change order providing for the installation of 70 additional sanitary service connections.   Upon the completion of the project, plaintiff sought additional payment from defendant, claiming that the project required the installation of 4,901 feet of six-inch laterals instead of the 2,000 feet originally contemplated.   Defendant denied plaintiff's request for payment on the basis that the change order adding 70 sewer connections eliminated the need for the six-inch laterals.

Plaintiff thereafter commenced this action seeking payment for the cost of the six-inch laterals that it had allegedly installed.   Shortly after joinder of issue and prior to discovery, plaintiff moved for summary judgment seeking payment in the amount of $105,371.50, representing the entire amount allegedly owed for the installation of 4,901 linear feet of laterals.   Defendant cross-moved for summary judgment seeking to dismiss plaintiff's complaint.   Supreme Court denied both motions, concluding that issues of fact existed precluding summary judgment.   Both plaintiff and defendant now appeal.

Plaintiff essentially contends that the agreement was a “unit price contract” which entitled it to receive compensation based on the actual number of units installed.   Asserting it was required to install 4,901 feet of six-inch laterals, and using the contract unit price of $21.50 per linear foot, plaintiff claims that it is owed $105,371.50.   Defendant, on the other hand, argues that as manifested in the change order, it decided to provide an additional 70 sewer connections rather than convert the duplex residences from a two-service per home line to single-service connections.   Since the laterals were only required for the conversion, defendant submits that their need was eliminated by the change order.   Additionally, defendant avers that plaintiff never established that it did, in fact, install the laterals as alleged.

 It is axiomatic that summary judgment is a drastic remedy and may be granted only when it is clear that no triable issue of fact has been presented (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Levy v. CCA Indus., 160 A.D.2d 1170, 1171, 554 N.Y.S.2d 372).   The moving party has the initial burden of making a prima facie showing of entitlement to relief (see, Cheeseman v. Inserra Supermarkets, 174 A.D.2d 956, 957–958, 571 N.Y.S.2d 358), and once this burden is satisfied the nonmoving party must present admissible evidence that a triable issue of fact exists (see, Bethlehem Steel Corp. v. Solow, 51 N.Y.2d 870, 872, 433 N.Y.S.2d 1015, 414 N.E.2d 395;  Chen v. Wharton, 112 A.D.2d 636, 639, 492 N.Y.S.2d 494, lv. denied 66 N.Y.2d 602, 496 N.Y.S.2d 1026, 487 N.E.2d 910).

 In support of its motion, plaintiff submitted an affidavit of its project supervisor who stated that the change order did not eliminate the need for 2,000 linear feet of the six-inch laterals, and that, in fact, a total of 4,901 linear feet was required.   Invoices from suppliers representing purchases by plaintiff of the six-inch laterals were also proffered.   In contrast, defendant, in support of its cross motion, presented the affidavit of its project manager indicating that although the project originally required 2,000 feet of six-inch laterals, the change order negated the need for the laterals.   Defendant further maintained that there was no separate need for the laterals and the six-inch pipe supplied by plaintiff did not constitute house laterals, but instead was material included in the unit price pertaining to sanitary sewer connections.

Although defendant insists that the change order obviated the need for the 2,000 feet of six-inch laterals, the change order did not specifically address this issue.   In light of the fact that the evidence presented by the parties is in direct conflict and the change order is silent with respect to the six-inch laterals, summary judgment was properly denied.

 Additionally, the record reveals that an issue of fact exists as to whether the six-inch house laterals were in fact installed.   Although confirmation of the installation of six-inch laterals was not verified pursuant to the procedures required by the contract, whether six-inch laterals were installed remains an issue.   However, we disagree with Supreme Court's finding, as a matter of law, that plaintiff is not entitled to recover for the installation of more than 2,000 feet of six-inch laterals required under the contract, if proven.   The record reflects that the contract was based on “unit price” and, hence, plaintiff may not necessarily be precluded from obtaining payment for six-inch laterals in excess of 2,000 feet (see, Waltech Constr. Corp. v. Town of Thompson, 237 A.D.2d 716, 717, 654 N.Y.S.2d 456;  cf., Oriskany Falls Fuel v. Finger Lakes Gas Co., 186 A.D.2d 1021, 590 N.Y.S.2d 824).   Similarly, contrary to Supreme Court's suggestion, we find that questions of fact exist as to the effect of the change order and whether the six-inch pipe installed by plaintiff was included in the service connections or was a separate item used in connection with the house laterals.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as restricted plaintiff's potential recovery to compensation for 2,000 linear feet of six-inch laterals and determined as a matter of law that the change order did not eliminate the need for the six-inch house laterals, and, as so modified, affirmed.

GRAFFEO, J.

CARDONA, P.J., and PETERS, SPAIN and CARPINELLO, JJ., concur.