The defendant moves for partial summary judgment seeking to dismiss the portion of plaintiff's complaint seeking $239,330.98 for additional work performed on a construction project. The plaintiff, an excavation and site work company, entered into a subcontract with Fratello Construction Corporation ("Fratello") for $566,951.00 to provide labor and material to complete excavation and site work in conjunction with Fratello's prime contract with Delaware County for site work at the Delaware County Correctional Facility in Delhi, New York. The project was a public improvement and Fratello was required to obtain a labor and material payment bond that was issued by defendant Hartford. Article 9 of the subcontract provides that the stated sum is "subject to additions and deductions as provided in the subcontract documents." The schedule of subcontract work attached to and made part of the executed subcontract also contained a handwritten note from a representative of Fratello, which states "quantities as indicated on LaFever...proposal are subject to actual quantities required per contract documents." [*2]Plaintiff initiated this action, alleging that it encountered conditions on the site which necessitated it to provide additional labors and materials, exceeding the scope of the original subcontract. The complaint seeks a total of $303,071.35.

The defendant moves for summary judgment on the ground that the action is barred by documentary evidence. A party is entitled to summary judgment on this ground only where the documentary evidence utterly refutes the factual allegations conclusively establishing that a claim cannot be established as a matter of law. See, Goshen v. Mutual Life Insurance Co. of New York, 98 NY2d 314 (2002). The defendant, as the movant for summary judgment, is required to demonstrate its entitlement to judgment as a matter of law to dismiss this portion of the claim. See, Loveless v. American Ref Fuel Co. of Niagara, LP, 299 AD2d 819 (4th Dept. 2002). The defendant has done so through the affidavit of Guilio Cianci, the Fratello's Vice President, along with copies of correspondence between Fratello and the plaintiff with respect to requests for documentation and written determinations of denial of the plaintiff's claim from both the construction manager and the architect. The defendant has also submitted the prime contract between Fratello and Delaware County, which provided that payment regarding changes in the work that would be additional cost not reflected in the contract sum be submitted along with supporting documentation to the construction manager, Bovis Lend Lease, and that should the construction manager deny the request, the requisition could be submitted to the architect, MRB Group. The defendant maintains that despite requests from Fratello beginning in December of 2002, no supporting documentation as required by the contract was provided by the plaintiff until November of 2004.

Inasmuch as the defendant has met its burden, that burden then shifts to the plaintiff, the non-moving party, to raise an issue of fact. See, Hunt v. Kosterelis, 27 AD3d 1178 (4th Dept. 2006). The plaintiff has sufficiently demonstrated that the defendants' documentary evidence is not sufficient to completely refute the factual allegations raised by the plaintiff. The affidavit of John LaFever, plaintiff's president, raises a number of factual issues which the defendant has not disputed. According to Mr. LaFever, the plaintiff encountered conditions on site which necessitated it to provide labor and materials which exceeded the scope of the original subcontract memorialized in the plaintiff's original proposal. The plaintiff has submitted payment applications numbers 3 through 9, which include invoicing for the additional work. Mr. LaFever has attested that during the course of the contract he was in personal contact with a number of Fratello personnel, whom he made aware of the additional labor and materials required beyond that contemplated by plaintiff's original proposal as soon as the plaintiff became aware of the necessity for same. Mr. LaFever contends that additional fill was needed due to errors apparently made by the architectural and engineering company hired by Delaware County. The plaintiff also provides a copy of a proposal dated June 3, 2002 for payment of additional fill, as well as a copy of each delivery ticket signed by a Fratello representative and eight invoices for additional labor and materials not accounted for in said delivery tickets dated between May 15, 2002 and October 29, 2002.^[FN1] In addition, the defendant has not refuted the plaintiff's assertion [*3]that a Fratello representative was on site and personally witnessed the delivery of each load of fill. Based upon the submissions, the defendants' documentary evidence here does not resolve all factual issues as a matter of law definitively disposing of the plaintiff's claim. See, Walek v. Hinkley, 12 AD3d 893 (3d Dept. 2004). As such, the defendants' motion for partial summary judgment is denied.

NOW, therefore, for the foregoing reasons, it is

ORDERED, that the defendants' motion for partial summary judgment is denied.

ENTER

Dated: August 15, 2007

Syracuse, New York

DONALD A. GREENWOOD

Supreme Court Justice