Lizza Industries, Inc. v. County of Nassau

—In an action to recover damages for breach of contract, plaintiff appeals from an order of the Supreme Court, Nassau County, dated April 21, 1977, which denied its motion for partial summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. Order affirmed, with $50 costs and disbursements. Plaintiff contracted with the defendant municipality to undertake highway and drainage requirement construction for a period of two years. This was predicated upon an estimated contract price of $1,143,163.50. The contract contained the following clause: "4. Variation from Estimate of Quantities—Bidders are warned that the Estimate of Quantities of the various items of work and materials is approximate only and is given solely for use as a uniform basis for comparison of bids and is not to be considered a part of this contract. The quantities are estimated upon the normal amount of work performed during a two-year period. The quantities actually required to complete the contract work may be less or more than estimated and, if so, no action for damages or for loss of profits shall accrue to the Contractor for this reason.” (Emphasis in original.) The municipality’s approximation proved to be too high and the amount of materials used amounted to only 57.6% of the contract estimate. In this action plaintiff seeks damages upon the theory that there has been a major alteration to the contract because of the amount of work required. The plaintiff may not recover damages caused by overestimation in the contract under these circumstances. Plaintiff does not allege that defendant went elsewhere for its requirements, or that it exhibited bad faith in the inducement or performance of the contract. It follows that the foregoing provision in the contract protects the defendant against liability (see Litchfield Constr. Co. v City of New York, 244 NY 251; Farub Foundation Corp. v City of New York, 183 Mise 636). Gulotta, P. J., Damiani, Hawkins and O’Connor, JJ., concur.