Opinion
July 12, 1989
Appeal from the Supreme Court, Monroe County, Provenzano, J.
Present — Callahan, J.P., Doerr, Green, Balio and Davis, JJ.
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 A.D.2d 15, 21; J. Sussman, Inc. v Manufacturers Hanover Trust Co., 140 A.D.2d 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.