Schuler-Haas Electric Corp. v. Crown Asphalt Co.

Order insofar as appealed from unanimously affirmed with costs. Memorandum: Special Term correctly determined that a question of fact existed as to the price agreed upon by the parties. Evidence of defendant’s customary procedure of negotiating an agreed price with subcontractors and then incorporating that price, plus 7% for overhead, in its bid for public contracts can be considered on a motion for summary judgment (see, Barrow v Lawrence United Corp., 146 AD2d 15, 21; J. Sussman, Inc. v Manufacturers Hanover Trust Co., 140 AD2d 668; Dutch-American Mercantile Corp. v Cotra Corp., 285 App Div 55). We conclude that such evidence was sufficient, under the circumstances of this case, to raise a factual issue as to the price agreed upon between defendant and plaintiff subcontractor. (Appeal from order of Supreme Court, Monroe County, Provenzano, J. — art 78.) Present — Callahan, J. P., Doerr, Green, Balio and Davis, JJ.