Mars Associates, Inc. v. Health & Mental Hygiene Facilities Imp. Corp.

• Decision Date: 27 February 1975
• Citation: 47 A.D.2d 5,364 N.Y.S.2d 67
• Parties: MARS ASSOCIATES, INC., and Normel Construction Corp., Joint Venturers, Appellant, v. HEALTH AND MENTAL HYGIENE FACILITIES IMPROVEMENT CORPORATION, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 67

364 N.Y.S.2d 67

47 A.D.2d 5

MARS ASSOCIATES, INC., and Normel Construction Corp., Joint Venturers, Appellant, v. HEALTH AND MENTAL HYGIENE FACILITIES IMPROVEMENT CORPORATION, Respondent.

Supreme Court, Appellate Division, Third Department.

Feb. 27, 1975.

McDonough, Schneider, Marcus & Cohn, New York City (Eli Saul Cohn and Franklin E. Tretter, New York City, of counsel), for appellant.

Louis J. Lefkowitz, Atty. Gen. (Thomas P. Zolezzi and Ruth Kessler Toch, Albany, of counsel), for respondent.

Before HERLIHY, P.J., and GREENBLOTT, SWEENEY, KANE and MAIN, JJ.

OPINION FOR REVERSAL

GREENBLOTT, Justice.

Plaintiff was the successful bidder for a construction contract on a facility owned by defendant. The proposal together with specifications, was put out for bidding, requesting bidders to state a base bid for the project as a whole plus the specific amount which would be added to or deducted from the base bid for each of 16 alternate proposals. When the contract was executed, alternates numbered 2C, 13C and 15C were expressly included in the contract. In his first cause of action, plaintiff seeks payment of $50,000, the amount of its bid under alternate 12C. That provision of the proposal reads as follows:

ALTERNATE NO. 12C--ACQUISITION OF ADJACENT PROPERTY

a. It is anticipated that the adjacent property to the west of the present site, which is presently being utilized as a parking lot, will be acquired by New York City. In such event, the Contractor will be permitted to sue a portion of this adjacent property for material storage, staging and access to the present building site. (see Drawing A--1 for extent of area to be available) In the event this property is not acquired within 90 days of Notice to Proceed, the Contractor shall state the addition to the Contract Amount should this property not be available for use by the Contractor.

It is not disputed that the property referred to in alternate 12C was not acquired within the appropriate time limits. Defendant successfully urged before Special Term that since alternate 12C was not expressly listed in the final contract, it was not a part of that contract and could not be claimed by plaintiff as an item which had been breached. Plaintiff contends that the contract stated that all terms and provisions contained in the proposal and specifications were included in the contract, and that alternate 12C, in addition to being included under the umbrella of this provision, was in any event a self-executing provision which was not conditioned upon acceptance or rejection.

It is, of course, fundamental so as not to require citation of authority that a contract must be read to give meaning to all its provisions, and any ambiguity must be construed against the party who drafted the contract. Furthermore, in construing the words of a contract, they must be given their ordinary meaning unless the context requires a different construction. Thus, the general provision including within the contract all terms, conditions and provisions set forth in the notice to bidders, the proposal, the general conditions, the drawings, and the specifications, as if such terms, conditions and provisions were expressly and specifically set forth, would ordinarily require inclusion of 12C. On the other hand, the express acceptance of 2C, 13C and 15C gives rise to the implication that other alternates were not to be included. The court at Special Term applied the latter rule, for in his view, adoption of the former would require the inclusion of all other alternates in the contract merely because they were contained in the proposals and specifications.

Special Term did...