Acme Builders, Inc. v. Facilities Development Corp. , 415 N.Y.S.2d 291 ( 1979 )

Sweeney and Main, JJ.,

dissent and vote to reverse in the following memorandum by Sweeney, J. Sweeney, J (dissenting). While the drawings in question illustrate painting to be done to the floor, base, wall and ceiling of the existing boiler room, the specifications refer, in general, to the painting of surfaces which have been disturbed due to alteration work. In our view, the language used creates an ambiguity in the contract. Where such an ambiguity is found, the situation of the parties and the surrounding circumstances attendant upon the making of the contract are to be taken into consideration (Mister Filters v Weber Environmental Systems, 44 AD2d 639; Germaine v Safeguard Ins. Co., 7 AD2d 830). Consequently, it is necessary to consider the fact that the unawarded alternate proposal would have required much more extensive alterations to the existing boiler room and the fact that the alternate proposal specified certain alterations to the existing boiler room which were to be included in the base bid and the painting of the boiler room was not specifically mentioned. Plaintiff could have reasonably concluded that painting the existing boiler room was only required if the alternate was awarded. It is also a fundamental tenet of contract construction that any ambiguity must be construed against the party who drafted the contract (Mars Assoc. v Health & Mental Hygiene Facilities Improvement Corp., 47 AD2d 5, affd 38 NY2d 878). As to that section of the contract noted by the majority which required the submission of questions regarding the intent of the drawings to the architect in writing before submission of the proposal, it does not seem from the record that plaintiff ever questioned the intent of the drawings. It would appear that plaintiff submitted its proposal on the basis that the painting in question was only required if the alternate proposal were awarded. From our review of the record, we conclude that the trial court erred in holding that the painting of the existing boiler room was required by the contract and, thus, dismissing the complaint. It is within the power of this court to grant the judgment which upon the evidence should have been granted by the trial court (Grow Constr. Co. v State of New York, 56 AD2d 95). At the trial, defendant failed to offer any qualifying evidence as to the proper measure of damages. Absent such qualifying testimony, plaintiff’s method of proof and measure of damages should be accepted (see Shore Bridge Corp. v State of New York, 186 Misc 1005, 1016, affd 271 App Div 811). Consequently, we are of the opinion that the painting of the existing boiler room was extra work not covered by the main contract and that plaintiff sufficiently established damages as the cost of hiring the outside firm to do the painting plus 10% profit and 10% overhead. The judgment, therefore, should be reversed, and judgment granted to plaintiff in the sum of $11,495 with interest thereon.