Bedford-Carp Constr. v. Brooklyn Union Gas Co.

2023 NY Slip Op 02097

Bedford-Carp Construction, Inc., appellant, v. Brooklyn Union Gas Company, etc., respondent.

No. 2020-06252, Index No. 600751/20

Supreme Court of New York, Second Department

April 26, 2023

Law Offices of Steven Cohn, P.C., Carle Place, NY (Susan E Dantzig and Matthew T. Feinman of counsel), for appellant.

Day Pitney LLP, New York, NY (Paul R. Marino and Naju R. Lathia of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P. REINALDO E. RIVERA JOSEPH A ZAYAS HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Timothy S. Driscoll, J.), dated July 21, 2020. The order granted the defendant's motion pursuant to CPLR 3211(a)(1) to dismiss the first cause of action.

ORDERED that the order is affirmed, with costs.

The plaintiff, Bedford-Carp Construction, Inc., commenced this action, inter alia, to recover damages for breach of contract against the defendant, Brooklyn Union Gas Company. The first cause of action alleged that the parties entered into a written agreement whereby the plaintiff agreed to perform certain work related to an underground gas line in exchange for a lump sum payment, that the plaintiff completed all of the work within the scope of the agreement except for certain items that the defendant instructed the plaintiff not to undertake, and that the plaintiff is entitled to the entire lump sum payment.

The defendant moved pursuant to CPLR 3211(a)(1) to dismiss the first cause of action on the ground that documentary evidence-the parties' written agreement-refutes the plaintiff's allegations. The agreement includes a "Final Pricing & Schedule of Values," which specifies a "Lump Sum Value" for 21 separate items the final 3 of which are listed under a separate heading labeled "OPTION PRICED SERVICES." In an order dated July 21, 2020, the Supreme Court granted the defendant's motion, determining that the plain meaning of "OPTION PRICED SERVICES" in the agreement unambiguously refuted the plaintiff's allegation that the defendant was obligated to pay for those services even if they were not performed. The plaintiff appeals.

"A motion to dismiss [a cause of action] on the ground that the [cause of] action is barred by documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, [thereby] conclusively establishing a defense as a matter of law" (Qureshi v Vital Transp., Inc., 173 A.D.3d 1076, 1077; see Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326). "[T]o be considered 'documentary,' evidence must be unambiguous and of undisputed authenticity" (Fontanetta v John Doe 1, 73 A.D.3d 78, 86). "[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case" (id. at 84-85 [internal quotation marks omitted]).

"The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent" (Greenfield v Philles Records, 98 N.Y.2d 562, 569; see Donohue v Cuomo, 38 N.Y.3d 1 12). "Extrinsic evidence of the parties' intent may be considered only if the agreement is ambiguous, which is an issue of law for the courts to decide" (Greenfield v Philles Records, 98 N.Y.2d at 569). "Ambiguity in a contract arises when the contract, read as a whole, fails to disclose its purpose and the parties' intent, or when specific language is susceptible of two reasonable...