Gene Hock Excavating, Inc. v. Town of Hamburg

Order unanimously affirmed without costs. Memorandum: Plaintiff, the successful bidder on a highway construction project in defendant town, commenced this action to recover, inter alia, additional compensation for work required to stabilize a portion of the subsurface. The need for such work was unforeseen by plaintiff when it bid on the project. Supreme Court properly granted defendant’s motion for partial summary judgment dismissing that part of plaintiff’s complaint that sought damages for undercutting the subbase (see, Costanza Constr. Corp. v City of Rochester, 147 AD2d 929, appeal dismissed 74 NY2d 715; see also, Owners Realty Mgt. & Constr. Corp. v Board of Educ., 192 AD2d 471). The contract recites that plaintiff "satisfied [itjself as to the nature and location of the work, the general and local conditions, particularly those bearing upon * * * the character, quality and quantity of the surface and sub-surface materials to be encountered”. The contract further provides that "[a]ny 912 failure of the contractor to acquaint himself with all the available information concerning these [subsurface] conditions will not relieve him from the responsibility for estimating properly the difficulty and cost of successfully performing the work”. Thus, plaintiff is not entitled to additional compensation for work related to the subsurface conditions (see, Costanza Constr. Corp. v City of Rochester, supra). (Appeal from Order of Supreme Court, Erie County, Flaherty, J. — Summary Judgment.) Present — Pine, J. P., Wesley, Callahan, Doerr and Boehm, JJ.