Nicholas Di Menna & Sons, Inc. v. City of New York , 276 A.D.2d 838 ( 1949 )

Van Voorhis, J.

(dissenting in part). The second cause of action ought not to have been dismissed on summary judgment without a trial. It is to recover for repairing damage to the work due to leakage from a sanitary sewer, alleged to have been due to negligence by the city, which backed up into the excavations and works made and installed by plaintiff in the performance of its storm water sewer contract. Article XXV of the contract, to be sure, provides that if postponement or delay be occasioned by the precedence of paving or other contracts let or executed before the opening of the bids for this contract, “the contractor will make no claim for damages therefor nor for any damages in consequence of the street or the adjoining sewers not being in the condition contemplated by the parties.” There is a triable issue, at least, whether plaintiff’s claim under the second cause of action is of that nature. It does not appear to have been due to delay, but rather to be for extra work necessitated by the city’s negligence. The city was held liable in Pilkington Co. v. City of New York (211 App. Div. 558, affd. 243 N. Y. 638) under similar facts, and notwithstanding the usual clauses in public construction contracts calling upon the contractor to inform itself concerning the condition of subsurface structures, including sewers, and stating that the contractor shall make no claim for extra work on account thereof, not by reason of unforeseen obstructions or difficulties encountered in the progress of the work. If lack of knowledge on the part of the city would exonerate it, as to the defective condition of its sanitary sewer, then plaintiff should at least have been given opportunity to cross-examine the city’s witnesses upon that subject. The second cause of action should, in no event, have been dismissed upon motion for summary judgment.

The order appealed from and the judgment entered thereon should be modified so as to grant partial summary judgment only dismissing the first cause of action in the complaint as against defendant City of New York, but denying the motion insofar as it dismisses the second cause of action, with $20 costs and printing disbursements.

Peck, P. J., Glennon and Dore, JJ., concur in decision; Yan Yoorhis, J., dissents in part in opinion in which Shientag, J., concurs.

Judgment and order affirmed, with costs. No opinion.