IN RE: DOBCO (2025)

Judgment (denominated an order), Supreme Court, New York County (Arthur F. Engoron, J.), entered January 10, 2024, denying the petition to annul a determination of respondent Contract Dispute Resolution Board (CDRB), dated December 15, 2022, which denied petitioner's claims for additional compensation for providing a site safety manager, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

CDRB's determination was not arbitrary and capricious or affected by an error of law (see CPLR 7803[3];  9 RCNY 4–09[g][6]).  CDRB rationally concluded that the plain language of the addendum issued by the New York City Department of Design and Construction (DDC) required petitioner to provide a site safety manager on its construction project (see Matter of Total Envtl. Restoration Solutions, Inc. [TERS] v. Contract Dispute Resolution Bd., 215 A.D.3d 466, 467, 187 N.Y.S.3d 210 [1st Dept. 2023];  see generally Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 569, 750 N.Y.S.2d 565, 780 N.E.2d 166 [2002]).  The provision at issue states, “Contractor to provide a full-time certified Site Safety Manager as defined by NYC DOB.” The phrase “as defined by” clearly refers the reader to the Building Code's definition of a “site safety manager,” which sets out the qualifications for an individual serving in this role.  Petitioner's interpretation of this provision as merely directing it to the Building Code for guidance to determine whether a site safety manager was required for the project was properly rejected (see e.g. Matter of 195 B Owner LLC v. Anthropologie, Inc., 228 A.D.3d 418, 419, 213 N.Y.S.3d 30 [1st Dept. 2024]).

Moreover, the CDRB correctly notes that the Building Code merely establishes the “reasonable minimum requirements and standards” for construction projects, and DDC may impose safety requirements beyond those standards (see Administrative Code of City of N.Y. § 28–101.2).  To the extent petitioner suggests that the provision in the addendum is open to two interpretations (see e.g. Ellington v. EMI Music, Inc., 24 N.Y.3d 239, 244, 997 N.Y.S.2d 339, 21 N.E.3d 1000 [2014]), DDC's Information for Bidders required petitioner to seek clarification before bidding.  Because it failed to do so, it is bound by the City's interpretation (see Thalle Constr. Co., Inc. v. City of New York, 256 A.D.2d 157, 158, 681 N.Y.S.2d 522 [1st Dept. 1998]).  Petitioner's arguments that the addendum contained a latent ambiguity and that DDC should be estopped from denying its claim for additional compensation are unpreserved (see McCartan v. Shea, 211 A.D.3d 534, 535, 180 N.Y.S.3d 46 [1st Dept. 2022]).  In any event, the alleged ambiguity is not latent, as it “arises from the language [of the contract] itself” (see L & L Painting Co., Inc. v. Contract Dispute Resolution Bd. of the City of N.Y., 68 A.D.3d 594, 596, 892 N.Y.S.2d 55 [1st Dept. 2009], affd 14 N.Y.3d 827, 900 N.Y.S.2d 723, 926 N.E.2d 1228 [2010]).

We have considered petitioner's remaining arguments and we reject them.