Opinion
No. 140 SSM 13.
Decided April 29, 2010.
APPEAL from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered December 17, 2009. The Appellate Division, with two Justices dissenting, affirmed an order of the Supreme Court, New York County (Marcy S. Friedman, J.; op 2008 NY Slip Op 30177[U]), entered in a proceeding pursuant to CPLR article 78, which had denied a petition to annul a determination of respondent Contract Dispute Resolution Board of the City of New York rejecting petitioners' claim for compensation for additional work performed under a contract with respondent City of New York Department of Transportation.
Following competitive bidding, petitioner was awarded a public works contract for removal of lead-based paint from a bridge. The contract required petitioner to construct a protective scaffolding platform above the bridge's roadways. A dispute arose over the interpretation of a contract provision regarding the height of the platform with respect to differing roadway elevations. In order to conform to the specifications of the Transportation Department's engineer, petitioner incurred additional costs. Following the denial of its request for reimbursement for the additional costs, petitioner sought review from the Contract Dispute Resolution Board. The Board concluded that the ambiguity in the contract documents should have been discovered by petitioner at the bidding stage and that petitioner should have sought a clarification prior to bidding. LL Painting Co., Inc. v Contract Dispute Resolution Bd. of the City of N.Y., 68 AD3d 594, affirmed.
Georgoulis Associates PLLC, New York City ( Michael McDermott of counsel), for appellants.
Michael A. Cardozo, Corporation Counsel, New York City ( Alan G. Krams of counsel), for respondents.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed, with costs. The City of New York Contract Dispute Resolution Board rationally determined that a discrepancy between a diagram and notes on the contract drawing that is the subject of this dispute created an ambiguity in the contract terms, which petitioner LL Painting Co., Inc. failed to clarify prior to bidding as the contract required. Therefore, the Board rationally disapproved the claim for additional compensation.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, with costs, in a memorandum.