IN RE: TOTAL ENVIRONMENTAL RESTORATION SOLUTIONS (2023)

Judgment (denominated an order), Supreme Court, New York County (Eileen A. Rakower, J.), entered on or about October 13, 2021, denying the petition to annul a determination of respondent Contract Dispute Resolution Board (CDRB), dated February 4, 2021, which denied petitioner's claims for additional compensation from respondent New York Police Department (NYPD) for work performed pursuant a contract to remediate and digitize documents damaged by flooding caused by Hurricane Sandy, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

CDRB's determination was not arbitrary or capricious or affected by an error of law (see CPLR 7803[3];  9 RCNY 4–09[g][6]).  In calculating the remediation costs, CDRB rationally concluded that the language of the contract did not support petitioner's contention that the word “page” unambiguously referred to one side of a sheet of paper.  Unlike the section governing digitization services, which clarified that “[d]ouble-sided documents count as two pages,” there was no equivalent provision in the section governing remediation.  The omission of similar language with respect to remediation services “must be deemed an intentional choice of the parties” (Ambac Assur. Corp. v. EMC Mtge. LLC, 121 A.D.3d 514, 518, 995 N.Y.S.2d 545 [1st Dept. 2014]).  Indeed, remediation treats the whole sheet of paper regardless of whether it is printed on one or both sides, whereas digitization depends on the number of images scanned.

The contract's merger clause precludes petitioner's reliance on communications between the parties and other extrinsic sources to support its proposed definition (see Schron v. Troutman Sanders LLP, 20 N.Y.3d 430, 436, 963 N.Y.S.2d 613, 986 N.E.2d 430 [2013]).  Further, extrinsic evidence may not be considered where, as here, the contract is unambiguous (Matter of Wells Fargo Bank, N.A., 198 A.D.3d 156, 163, 154 N.Y.S.3d 305 [1st Dept. 2021], lv dismissed 38 N.Y.3d 998, 168 N.Y.S.3d 1, 188 N.E.3d 127 [2022]).  In any event, even if there were an ambiguity, it is to be construed against petitioner, the drafter of the agreement (see 327 Realty, LLC v. Nextel of N.Y., Inc., 150 A.D.3d 581, 582, 55 N.Y.S.3d 202 [1st Dept. 2017])

In determining the digitization costs, CDRB rationally relied on NYPD's calculation of the number of images that had been digitized, which was based on the number of files that NYPD received on hard drives from petitioner.  This method was consistent with the contractual term that petitioner was to be compensated “for the actual number of ․ images digitized.”  By contrast, petitioner's calculation method using image file size did not comport with the terms of the agreement.