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Supreme Court, Appellate Division, Fourth Department, New York.

D'AGOSTINO GENERAL CONTRACTORS, INC., Plaintiff-Respondent, v. STEVE GENERAL CONTRACTOR, INC., Defendant-Appellant, et al., Defendants.

Decided: December 30, 1999

PRESENT:  GREEN, J.P., PINE, PIGOTT, JR., SCUDDER and CALLAHAN, JJ. Kevin P. Ryan, Syracuse, for defendant-appellant. Arthur B. Archambeau, Stamford, for plaintiff-respondent.

On April 19, 1995, Steve General Contractor, Inc. (defendant) requested that plaintiff submit a bid to furnish and erect a Butler pre-engineered building.   Plaintiff submitted its bid in the amount of $47,750 later that day.   On April 28, 1995, defendant entered into a subcontract with the general contractor on a construction project for the City of Rochester.   Pursuant to its subcontract, defendant was to construct a Butler pre-engineered building.   On May 18, 1995, plaintiff advised defendant that it would be unable to erect the building, and offered to deduct $8,025, the erection cost, from its total bid.   On June 12, the parties executed a written agreement providing that plaintiff would furnish the materials and supplies for the construction of the building for $39,725, the original bid of $47,750 less the erection cost of $8,025.

 Plaintiff commenced this action to recover the sum allegedly remaining due under the parties' agreement.   Supreme Court properly granted plaintiff's motion for summary judgment.   Plaintiff submitted uncontroverted proof that $8,641.30 remains due and unpaid under the agreement.   The court also properly denied defendant's cross motion for summary judgment on the counterclaim and dismissed the counterclaim.   Defendant alleges in its counterclaim that plaintiff breached its obligation to erect the building in accordance with its original bid.   The record establishes, however, that defendant never communicated its acceptance of the original bid to plaintiff, and thus no contract was formed based upon that bid (see, Cortland Asbestos Prods. v. J & K Plumbing & Heating Co., 33 A.D.2d 11, 13, 304 N.Y.S.2d 694;  cf., Rochester Plumbing Supply Co. v. Burgart, Inc., 49 A.D.2d 78, 82, 370 N.Y.S.2d 716).   The use of plaintiff's bid in the bid submitted by defendant to the general contractor did not constitute acceptance of plaintiff's bid (see, Rochester Plumbing Supply Co. v. Burgart, Inc., supra, at 82, 370 N.Y.S.2d 716;  Cortland Asbestos Prods. v. J & K Plumbing & Heating Co., supra, at 12-13, 304 N.Y.S.2d 694).   In addition, pursuant to the merger clause in the written agreement, any agreement based upon plaintiff's original bid was superseded by the subsequent written agreement (see, AFA Protective Sys. v. Lincoln Sav. Bank, 194 A.D.2d 509, 510, 598 N.Y.S.2d 543;  see also, Payne v. Enable Software, 229 A.D.2d 880, 882, 645 N.Y.S.2d 916).

Order unanimously affirmed with costs.


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