Gordon J. Phillips, Inc., Respondent, v. Monroe County Water Authority, Appellant

Gordon J. Phillips, Inc., Respondent, v Monroe County Water Authority, Appellant. [MAJORITY] — Order unanimously reversed, on the law, without costs, and motion granted. Memorandum: Plaintiffs response to defendant’s motion for partial summary judgment is insufficient. As the rock removal was at a unit price, plaintiff is barred from suing in contract for more than the unit amount (Depot Constr. Corp. v State of New York, 19 NY2d 109 [1967]). However, the contractor’s assumption of risk in a unit price bid does not include fraud or misrepresentation (see, e.g., Jackson v State of New York, 210 App Div 115, 119-120, affd 241 NY 563). Since plaintiffs answering affidavits now charge defendant with fraud and misrepresentation, they must be considered on this motion for summary judgment even though no claim of fraud or misrepresentation was alleged in the complaint (Alvord & Swift v Muller Constr. Co., 46 NY2d 276). Plaintiff contends as the basis for its claim of willful misrepresentation that the test holes were never dug, that the information as to the depth of rock furnished by defendant was inaccurate, and that defendant withheld information as to its method of excavation. Plaintiffs claim of inaccurate measurement, even if true, is insufficient to support a claim of misrepresentation (Depot Constr. Corp. v State of New York, supra). On the remaining issues plaintiff has supplied only conclusory allegations, surmise and speculation which are insufficient to defeat defendant’s motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557). (Appeal from order of Supreme Court, Monroe County, Finnerty, J.— partial summary judgment.) Present — Dillon, P. J., Callahan, Denman, Balio and Lawton, JJ.