Opinion
September 30, 1994
Appeal from the Supreme Court, Monroe County, Wisner, J.
Present — Balio, J.P., Lawton, Wesley, Doerr and Boehm, JJ.
Order and judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff failed to submit sufficient evidence to establish as a matter of law that it reasonably relied upon defendant's bid of $30 per ton for virgin asphalt in submitting its successful general contractor's bid on a highway rehabilitation project. Plaintiff failed to submit its own bid documents or the bids of other suppliers to support the conclusory statement of reasonable reliance by its vice-president. Further, in submitting documentation to the State Department of Transportation naming the suppliers on each of the contract items, plaintiff did not identify defendant as the supplier for virgin asphalt. Plaintiff indicated that, before submitting that documentation to the State, it did not inform defendant that it intended to accept defendant's bid. Those and other evidentiary deficiencies preclude an award of summary judgment in plaintiff's favor. The order and judgment appealed from is modified by denying plaintiff's cross motion for summary judgment.