New York State Court of Claims

New York State Court of Claims

GOLDNER v. STATE UNIVERSITY OF NEW YORK AT STONY BROOK, #2002-030-503, Claim No. 97670, Motion Nos. M-64107, CM-64243


Claimant's motion for summary judgment granted. SUNY Stony Brook breached express contract. No need to examine extrinsic evidence, any ambiguities resolved within the four corners of the contract. Claimant precluded from recovery on alternate theories of implied contract and quantum meruit, given Court's ruling that recovery for breach of express contract

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
February 1, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers have been read on Claimant's motion for summary judgment, and Defendant's cross-motion for summary judgment, both marked fully submitted on November 21, 2001:
1,2,3,4 Notice of Motion; Affirmation in Support by Frederick J. Anton, Esq., with accompanying exhibits and deposition transcripts; Affidavit of Cynthia R. Clark, Esq., and accompanying exhibits; Memorandum of Law.
5,6,7,8 Notice of Cross-Motion; Affidavit in Support of Cross-Motion and in Opposition to Claimant's Motion by Mark Maciulaitis with accompanying exhibits; Affidavit in Support of Cross-Motion and in Opposition to Claimant's Motion by Arthur Patane, Esq.; Memorandum of Law.
9,10 Affirmation in Opposition to Cross-Motion by Frederick J. Anton, Esq., with accompanying exhibit; Affidavit in Opposition to Cross-Motion by Fredric S. Goldner.
11,12 Reply Affidavit of Fredric S. Goldner in further support of Claimant's Motion for Summary Judgment; Reply Memorandum of Law.
13,14 Filed Papers: Verified Claim; Verified Answer.
Fredric S. Goldner, doing business as Energy Management & Research Associates, (hereafter Claimant or Goldner) filed a Verified Claim on or about January 16, 1998 alleging, among other things, that the Defendant, the State University of New York at Stony Brook, had breached an express contract entered into between the parties, by a failure to pay sums due to the Claimant. It is undisputed that the contract at issue includes an Agreement dated September 21, 1993 (hereafter Agreement), incorporating Bid Proposal 92/93-074MC (hereafter Bid Proposal) issued for bid by Defendant on or about April 15, 1993, as well as a standard rider "setting forth various governmental requirements...." (hereafter rider) [ Paragraph "7", Affidavit of Mark Maciulaitis sworn to October 30, 2001 in Support of Cross-Motion].

The general outline of the parties' obligations under the contract, as set forth in the Agreement portion, were that the Claimant would provide "utility billing auditing services" in accordance with the incorporated Bid Proposal[1]. Payment of the Claimant's fee was conditioned upon "savings realized." Claimant would receive "a 30% flat fee of the refunds issued to Defendant as a result of the audit process."

Undisputed portions of the Verified Claim allege that after the agreement was entered into, Claimant commenced performance. In or about June, 1994, Claimant reported an error in a Long Island Lighting Company (hereafter LILCO) bill for the period June 1, 1988 through July 5, 1988. On September 15, 1994 Claimant submitted an invoice to Defendant representing 30% of the refund issued to Defendant, which was paid by Defendant in or about March, 1995.

In or about January, 1995, Claimant told Defendant of the availability of an alternative, more beneficial, utility rate available to the Defendant since August 15, 1991. [Exhibit "12", Affirmation in Support by Frederick J. Anton]. Claimant alleges that the savings which could have been realized for that period would be in the amount of $1,776,715.00. [Paragraph 36, Verified Claim]. While Defendant admits in its Answer to two meetings between the parties in March, 1995 and in April, 1995, Defendant denies that the purpose of those meetings was, respectively, "to discuss strategy relating to the claim to recover the estimated $2 million overpayment from LILCO," [Paragraph "48" Verified Claim; Paragraph "2" Verified Answer], and "to renegotiate Claimant's fee under the Contract."[Paragraph "57" Verified Claim; Paragraph "2" Verified Answer].

In or about June, 1997, Defendant and LILCO entered into a Settlement Agreement whereby Defendant received the equivalent of the $1,500,000.00 representing the difference between the amount charged and the amount which should have been charged under the alternate rate[2]. The Defendant did not pay the Claimant any fee for the savings realized.

Summary Judgment
As a preliminary matter, Defendant has raised the issue of the sufficiency of Claimant's support for its motion for summary judgment, and would have this court deny the motion on procedural grounds alone.

§3212(b) Civil Practice Law and Rules provides in pertinent part:
....A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party....the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.

Assuming a movant has made a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to eliminate any genuine, material, issues of fact, the party in opposition to the motion for summary judgment must tender evidentiary proof in admissible form to establish the existence of material issues which require a trial. Winegrad v New York University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980). While it is not the best practice, the use of an attorney's affirmation appending pertinent deposition testimony, documentary evidence, and a verified pleading reciting material facts, is not a fatal procedural flaw in the Claimant's presentation. Alvarez v Prospect Hospital, 68 NY2d 320, 325 (1986).[3]

Additionally, §105(u) Civil Practice Law and Rules indicates that "...[a] ‘verified pleading' may be utilized as an affidavit whenever the latter is required." While it is something of an overstatement to declare that "...[t]here is no question that a plaintiff may support a motion for summary judgment with a copy of his verified pleading[4]....(citation omitted)", [Pages 1-2; Reply Memorandum of Law in further support of Claimant's Motion for Summary Judgment], the use of a detailed verified pleading will suffice here, accompanied as it is by the necessary documentary evidence and deposition testimony. Alvarez v Prospect Hospital, supra. Moreover, in reply to the Defendant's arguments concerning the sufficiency of Claimant's motion, Claimant furnished additional affidavits from Fredric S. Goldner - clearly "...a person having knowledge of the facts..." [§ 3212(b) Civil Practice Law and Rules] - as well as an additional Memorandum of Law, yet Defendant did not seek leave to file a sur-reply or additional memorandum of law addressing the merits once Claimant's submissions were served and filed. Accordingly, and as previously noted, the Court is satisfied that the Claimant's motion is adequately supported as an initial matter.
Contract Law
New York State subscribes to the so-called "four corners rule" in analyzing contracts. As noted by the Court of Appeals, there is "...a vital first step in the analysis: before looking to [extrinsic] evidence of what was in the parties' minds, a court must give due weight to what was in their contract. A familiar and eminently sensible proposition of law is that, when parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms. Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing...(citations omitted). That rule imparts ‘stability to commercial transactions by safeguarding against fraudulent claims, perjury, death of witnesses ... infirmity of memory ... [and] the fear that the...[fact finder] will improperly evaluate the extrinsic evidence.' (Fisch, New York Evidence § 42, at 22 [2d ed].)... Whether or not a writing is ambiguous is a question of law to be resolved by the courts (Van Wagner Adv. Corp. v S & M Enters., 67 NY2d 186, 191)." W.W.W. Associates, Inc. v Giancontieri, 77 NY2d 157,161-162 (1990); See, also, Hudson-Port Ewen Associates, L.P. v Kuo, 78 NY2d 944, 945 (1991); Hartford Accident & Indemnity Co. v Wesolowski, 33 NY2d 169,172 (1973).

Because a party urges one interpretation of a contract, while the other party urges a different construction, the agreement's terms are not rendered ambiguous, requiring consideration of parol evidence to determine the intent of the parties.[5] Thus in Bethlehem Steel Co. v Turner Construction Co., 2 NY2d 456, 459 (1957), the Court focused on the meaning of the words "prices for component materials" contained in a contract allowing escalation of the prices charged based upon an increase in the "prices for component materials." Looking at the contract as a whole, the Court was able to discern the meaning of the terms employed in the contract, and found that summary judgment had been properly granted.
Summary of Facts
In this case, it is conceded that three writings prepared by Defendant make up the express contract between the parties: the Bid Proposal, the written Agreement, and the rider. The written Agreement provides: "WHEREAS the UNIVERSITIES desire to enter into an agreement for Utility Billing Auditing Services to identify over charges by service providers and to negotiate refunds....1. CONTRACTOR agrees to provide services mentioned above and in accordance with bid proposal 92/93-074 MC attached hereto and made a part of this agreement...2. UNIVERSITIES shall pay the CONTRACTOR a 30% total flat fee of the refunds issued to the Universities as a result of the audit process. If no savings are realized, there will be no fee paid to the CONTRACTOR; in addition no fees will be paid on future savings. Fees will be paid through the audit completion date only." The Defendant could terminate the contract with thirty (30) day written notice, and there is a clause prohibiting Claimant from assignment as it was "understood...that this agreement is intended to secure the personal services of the CONTRACTOR because of its ability and reputation."

The Bid Proposal indicates under the "Objectives" portion the "Purpose"[6] of the request for bids as:
The State University of New York at Stony Brook, State University of New York College at Farmingdale and the State University of New York College at Old Westbury, referred to herein as the ‘Universities', intend to contract with a qualified auditing firm, experienced in the billing procedures of utility companies; electric, gas, sewer and water (excluding telephones), to conduct billing reviews of past invoices for the negotiation with and the recovery from utility providers of any overpayments and correction of all future billings. The State University of New York at Stony Brook is coordinating this request for proposal on behalf of...[the other campuses] as well as its own facility.

The auditing firm selected will provide the following services:

(a) ab Audit all utility billings and fees and rentals to determine compliance with rates in force at the time;
(b) ab Determine accuracy of all utility billings and any sewer rentals versus actual services provided and report on discrepancies;
(c) ab Act, as required, on the Universities' behalf to reconcile records and to procure funds for past overpayments;
(e) ab Provide narrative reports covering the Universities' utility environment which identify the areas of deficiencies in utility billing and rate verification, in order that the agency can implement controls to avoid inappropriate payments in the future.

Under the "Scope of Work"[7] portion of the Bid Proposal, immediately following the "Purpose" section, and after reciting the current utility budgets for the three campuses using the language "in excess of $25,000,000.00" when referring to SUNY Stony Brook, the language continues as follows:
.....The Universities seek bid proposals from qualified utility auditing consultants to provide a complete billing audit for the Universities with the express intent of identifying overcharges by service providers and to negotiate refunds.
Consultant fees will be a percentage of the refunds issued to the Universities as a result of the audit process. If no savings are realized, there will be no fee paid to the consultant; in addition no fees will be paid on future savings. Fees will be paid through the audit completion date only.
...It should be stressed that the Universities are not seeking to alter utility system designs or buy new equipment. This bid is intended solely for billing charge audit. Bidders should not include proposals for system design changes, new equipment or other consultant services in their responses.

The Bid Proposal sets forth what it requires in terms of experience from a successful bidder, and what types of information should be furnished in any bid. Under "General Qualifications"[8] it provides:
To be considered responsive to bid requirements, the bidders expertise and depth of auditing disciplines shall include, but not necessarily be limited to, qualified experience with the following:
(a) abAudit of various sizes and types of utility systems
(b) abReview of Customer Service Records...
(c) abAnalysis of usage calculations and rates
(d) abNegotiation with service providers (i.e. Long Island Suffolk County Sewer District #1, etc.)
(e) abDevelopment of programs to improve client communications cost monitoring of utility charges
(f) abKnowledge of applicable Public Service Commission rules and tariffs.
Bidders must demonstrate that the Project Team will consist of qualified utility auditors or persons with appropriate academic accounting training and proven related experience.

Bidders were required to furnish the resumes of all personnel working on the project as well as corporate financial statements, and descriptions of the firm's experience, including prior "...utility consulting/auditing customers served by the consulting firm over the past three (3) years."[9] They were required to provide:
A comprehensive description of the bidders technical approach to providing the required services including a listing of project tasks and a general schedule for completion to include:

(a) ab A proposed schedule...of activities and events, for the implementation and completion of the Scope of Work detailed in Section I.2 will be required. This schedule will be subject to approval by Universities.
(b) ab The technical proposal must specifically address how the bidder would approach an audit of utility bills for the Universities which might reasonably expect to yield a savings.
(c) ab The proposal must specify at what point in the audit process the calculation of potential credits subject to vendor fees is concluded.

In terms of who would be selected, the Bid Proposal stated[10]:
Bidder selection will be based upon, but not limited to, such criteria as:

(a) abRelevant experience and qualification of personnel to be assigned to the project.
(b) abThe firm's demonstrated knowledge of contemporary, state-of the art utility technology and rates.
(c) abThe firm's demonstrated level of experience and competence in the field of utility rate auditing especially as applicable to large governmental organizations.
(f) ab Cost and reasonableness of the firm's financial proposal.

Finally, in terms of "Consultant's Fees"[11], the Bid Proposal provides:
In the submitted proposal the bidder is to state the percentage of return expected from monies recovered from utility services providers. When refund credits are received, the contractor will be paid the agreed percentage of total credit/refund received. Where there is no refund or credit there shall be no fee or expenses whatsoever. No consultant fees will be paid upon future billing savings to the Universities.

For retroactive refunds or credits, the specified percentage fee shall be payable quarterly upon receipt of a properly dated invoice by each University according to Standard State Procedures....It shall be understood that the contractor is to be aggressive and diligent in obtaining any and all refunds/credits due.

The agency will at all times assist in providing whatever documentation is needed to obtain the maximum return of overcharges, as determined. In all cases, the agreed percentage fee will apply.

In the factual Affidavit submitted by Counsel for the Defendant the affiant confirms that "Claimant...notified Stony Brook that in addition to the rate under which its utility bills had been calculated, Stony Brook was also entitled to select a second or alternative rate. Claimant also offered that in the event that Stony Brook would select the second available rate and ‘redo' its past billings, it might result in substantially lower bills....Subsequently, Goldner demanded that in the event Stony Brook selected the second available rate and that rate was applied by the utility company retroactively to past billings, that it then be paid 30% of the difference between the amount billed by Stony Brook under the first rate and the amount billed under the second rate.....Stony Brook rejected claimant's demand." [Paragraphs 12-14, Affidavit of Mark Maciulaitis].

Parenthetically, on or about October 18, 1994 Claimant wrote a letter [Exhibit "11", Affirmation in Support of Frederick J. Anton] to Enrico Johnson, Senior Budget Analyst and the self-described "middle person between accounts payable....[and] Goldner...." [Examination Before Trial of Enrico Johnson, Page 38]. In the letter Claimant sought further authorizations from Defendant directed to LILCO in order to review the utility's bills for 1990 through 1994, and suggested additional services described as "Part 2. A review of applicable rate tariffs to determine if the facility would benefit from a change in rate classification." Claimant continued: "Due to our desire to respond to the specific language in your...[bid proposal] we did not request that Part 2 services be included in the contract. Therefore, based on the terms of our contract, we have only been providing Part 1 services[12] to the University. Because of this situation, the University is not availing themselves of the opportunity for a complete and comprehensive Utility Rate Audit....We would like to propose that we expand the scope of the current contract to include Part 2 services as outlined above....."

The proposed addendum enclosed indicates: "If new and beneficial rate classification(s) are determined by...[Claimant] to be applicable, and a switch over is made to the new rate classification...the Universities agrees to pay...[Claimant] 30% of the savings, for a period of two (2) years following such a switch over. Savings will be calculated by subtracting the actual charges from the charges that the facility would have incurred if the switch over had not occurred." This addendum was not executed.

Exhibits furnished by Claimant confirm that the Defendant was notified in writing of the availability of the alternative rate by letters dated January 10, 1995. [Exhibits "12" & "13", Affirmation in Support of Frederick J. Anton]. By its terms, one letter indicates that there had been some oral discussion of the alternative rate. [Exhibit "12"]. The letters enclosed a breakdown of the charge differences in chart form showing the savings which would be realized under the alternative rate, noted the obligations of LILCO to adequately advise its largest customer of alternative rates, and the potential liability of LILCO had it failed to advise of the beneficial rate.

In uncontradicted deposition testimony David Price, one of the Claimant's principals, states that the "bulk" of a letter placed on Stony Brook stationary, dated February 15, 1995, directed to LILCO, and signed by Harry Snoreck,Vice President of Stony Brook, was written by the deponent. [ Page 43-44, Transcript of David C. Price]. The letter indicates in pertinent part: "....As part of...[the utility bill audit] process, it has come to our attention that the above-referenced account has been eligible for an alternate rate in accordance with a schedule revision which went into effect on August 15, 1991 (Rate 285- Rate 2). Since this alternative rate was introduced after we had initially contracted for service, we believe that LILCO had the responsibility to inform us of the existence of the new rate tariff and to assist us in determining its impact.....Our audit investigation reveals that, had the University been properly advised and assisted by LILCO, we would have elected to take advantage of the alternate rate and would have received the benefit of substantial reductions. We estimate the resulting overpayment to LILCO as approximately $2 million." [Exhibit "15", Letter to LILCO from Harry Snoreck, Vice President Stony Brook, dated February 15, 1995].

Judging by the memoranda going back and forth within Stony Brook,[Exhibits "19", "20"], there was at least one meeting in which the parties discussed Claimant's receipt of a fee - at a reduced rate[13] - continued discussion concerning Stony Brook pursuing the overpayments on

its own,[14] and the genesis of the current dispute over the scope of the contract.[15] There was also some activity with regard to analyzing overpayments during the latter part of calendar year 1994 and early 1995 based upon an alternative rate. [See, e.g., Exhibits "17" and "18", Letters between Stony Brook and David Price dated March, 1995]

The depositions of Defendant's agents confirm that Stony Brook decided to pursue the overpayment issue on its own, and took the position that no compensation was due Claimant because the work performed was outside the scope of the contract.[16] Similarly, e-mail memoranda between Stony Brook personnel confirms the university's view that it had unilaterally determined to pursue negotiations with LILCO on its own.[17]

The uncontradicted documentary evidence indicates that on July 10, 1995 Claimant wrote to Mark Maciulaitis, Stony Brook's Director of Budget and Analysis, saying [Exhibit "21"]:
Over 6 months ago, as a direct result of our ongoing utility bill analysis for Stonybrook University, we discovered a potential $2,000,000 overcharge, by LILCO, on one of the University's electric accounts. In accordance with our agreement, we informed the University of our findings prior to approaching LILCO. We were then asked, by Stonybrook University, to draft a sample letter to LILCO requesting payment. This letter was used as the basis for a letter the University sent to LILCO on February 15, 1995....
A meeting was then held on March 8, 1995, attended by members of our firm and Stonybrook University personnel, to discuss the current status of events and to decide on the best method for proceeding with the claim against LILCO. At that time it was decided, by Stonybrook University, that the University had a better chance of obtaining a quick resolution from LILCO and therefore would be the one to pursue this matter. Our position, then and now, is that we are ready, willing and able to pursue this matter on the University's behalf in accordance with our contract. This point was reemphasized in a subsequent meeting between our staff and University personnel that was held on April 15, 1995.
In the four months that have elapsed between the meeting of March 8, 1995 and the present we have attempted to determine, via several telephone calls, the results, if any, of the negotiations between the University and LILCO. Our efforts have been to no avail as we have been informed, each time, that no new information is available.
I therefore respectfully request that we be provided with a written update on the current status of this issue. If the University has been unable to achieve any results I request that we be given the opportunity to pursue this matter in accordance with the terms of our original contract....

According to the deposition of Gerianne Sands, counsel to Stony Brook, Claimant continued to request updates[18] and was specifically told, in a letter dated October 2, 1996 drafted by the witness but signed by President Shirley Strum Kenny, that she had been kept apprised of "...the ongoing progress of efforts to recover from LILCO any refunds to which the University is entitled. Since I am advised by counsel that these efforts fall outside the scope of the work performed by your organization, I concur with my staff's conclusion that regular updates to you regarding the progress of these confidential negotiations were not warranted under the circumstances...." [Exhibit "22" , Affirmation of Frederick J. Anton].

Finally, the depositions of Defendant's employees also indicate that most were not expert in "utility bill auditing" or "energy conservation or energy use."[19] Apart from some internal monitoring of meter readings versus bills rendered by LILCO[20], and a yearly notification on rates, "there was never analysis of what other rates were out there that the university could switch to...."[21]

Under the terms of a Settlement Agreement reached between LILCO and Defendant, "...the total dollar value received by Stony Brook...was $1,500,000.00." [Page 2, Par. 6, Affidavit of Cynthia R. Clark, Esq.]. The Settlement Agreement was memorialized in a writing dated June 13, 1997, and in a Rider dated February 9, 1998, and is comprised of a combination of cash payments, construction of gas lines and conversion of certain boilers to ‘dual fuel', and credits on account. [Ibid., Par. 7].

The Contract
A fair reading of the contract shows that the intent of the parties was to save money for the university. This thought is pronounced again and again throughout the Agreement and the Bid Proposal. Defendant wanted someone "to identify over charges by service providers and to negotiate refunds,"[22] wanted "qualified utility auditing consultants to provide a complete billing audit...with the express intent of identifying overcharges by service providers and to negotiate refunds."[23] Even the fee provisions, calling for payment, as they do, only upon satisfaction of certain contingencies, evidence the clear intent of the parties that this was to be a venture designed to save the Defendant money.

What was not contracted for, i.e.: alteration of system designs or new equipment; and future savings, was expressly stated in the written instrument. Payment of the fees to the Claimant depended upon "refunds issued to the...[Defendant] as a result of the audit process."[24] The Agreement provided that only Claimant could furnish the "personal services" called for, based upon the depth of its experience.[25]

Although the words "audit process" and "utility billing audit" are not defined specifically within the contract - indeed, none of the terms of the contract are defined - their meaning can be gleaned from the instrument when read as a whole. See, Hudson-Port Ewen Associates, L.P. v Kuo, supra, at 945; Bethlehem Steel Co. v Turner Construction Co., supra, at 459-460. This Claimant was required to look for any way it could to save money for this Defendant, and was selected with the view that its expertise was superior to that of Stony Brook's employees. The Bid Proposal states: "The auditing firm selected will provide the following services:...audit all utility billings and fees and rentals to determine compliance with rates in force at that time...;"[26] the successful bidder was to possess "...expertise and depth of auditing disciplines...[including] analysis of usage calculations and rates...negotiation with service providers....[k]nowledge of applicable Public Service Commission rules and tariffs."[27] The Claimant was " be aggressive and diligent in obtaining any and all refunds/credits due."[28] In this Court's view, as one element of the "utility billing audit" determination of the most cost effective rate available to the Defendant, and comparison of the cost of service under one rate, versus the cost of service under another, is clearly included, and indeed called for by this contract. It goes against logic and a plain and sensible reading of the contract to say, as the Defendant would urge, that the Claimant - experienced and knowledgeable as it was - was to identify only certain types of overcharges and not others.

There is no evidence that Defendant learned of the alternative rate from any source other than Claimant, despite the monitoring of the utility bills by Defendant's agents in place at the time. Indeed, it was Claimant who advised that any failure by LILCO to notify the Defendant of alternative rate schedules would be, if not actionable, then at least a bargaining chip in any negotiation for a refund.

The Claimant was expressly required to negotiate with the utility provider.[29] From the uncontroverted facts as shown in the depositions of its employees, and internal memoranda, Defendant essentially preempted Claimant's ability to perform under the contract, by determining that it would preside over the negotiations with LILCO. This flies in the face of a rule that is axiomatic: the implied condition in every contract that one party will not prevent the other's performance. See, In re People by Phillips, 250 NY 410 (1929).

There is no evidence contradicting the Claimant's assertions that in addition to the existence of the alternate rate, it advised the Defendant of LILCO's notice obligations, it reminded the Defendant that as LILCO's largest customer Stony Brook had a good bargaining position, and it drafted the letter constituting the first foray into negotiations with LILCO to obtain a refund. All the evidence presented shows that Claimant continued to try to perform the negotiation aspect of its obligation under the contract, but was prevented from doing so. The fact that the Defendant ultimately negotiated a refund itself does not preclude a finding that the Claimant is entitled to a fee under the contract at issue based upon a refund realized "as a result of the audit process." As Claimant's counsel notes, as expressed in the contract, the fee is not a percentage of the refund realized "as a result of the contractor's negotiations with the utility."[30] "In order to accept Stony Brook's argument, the Court would also have to conclude that Stony Brook could deprive claimant of his contingency fee at any point after claimant discovered an overcharge by simply taking control of communications or negotiations with LILCO. Under such an interpretation, claimant's fee would be paid at the whim of Stony Brook."[31]

The party seeking to benefit from this skewered construction is the Defendant: the one who drafted the contract. Contracts should be interpreted in the manner giving the most equitable result, rather than slanting the terms so that "...'one party is at the mercy of the other'...." Metropolitan Life Ins. Co. v Noble Lowndes International, Inc., 84 NY2d 430, 438 (1994); see, also, Fleischman v Furgueson, 223 NY 235, 241 (1918).

The Defendant has argued that the October 18, 1994 letter[32] proposing a modification of the contract terms, demonstrates that the work at issue in this lawsuit was outside the scope of the contract. First, a 1994 letter is not probative of the parties' intent upon entry into a contract almost a year earlier, especially, where as here, the court has indicated that extrinsic evidence is unnecessary to aid in interpreting any perceived ambiguity. Second, the letter reads prospectively: what is proposed is a change in the "future savings" exclusion portion of the contract, not at issue here.

In viewing the uncontroverted material facts necessary to such a ruling, it is clear that the Claimant has more than established its entitlement to summary judgment on its first cause of action: breach of an express contract. § 3212 Civil Practice Law and Rules. Claimant having established its entitlement to judgment as a matter of law, it was incumbent upon Defendant to come forward with evidence that there exists a triable issue of fact. The Defendant has failed in its burden. No triable issues of fact pertinent to the issue of breach, given the clear contract terms, have been presented. The only factual "rebuttal" presented by Defendant was in the Affidavit of Mark Maciulaitis. His affidavit merely urged one construction of the contract, and confirmed that Claimant alerted the Defendant to the existence of the alternate rate. All other factual information - even viewed in the light most favorable to the Defendant - confirms the additional events amounting to breach described by Claimant in his Verified Claim, and supported by the evidence. Claimant is hereby granted Summary Judgment on the first cause of action: breach of express contract.

There are two remaining causes of action in the Claim: one for breach of an implied contract, and one sounding in quantum meruit. These claims, however, are dismissed as a matter of law. The Court has determined that the Claimant may recover for the Defendant's breach of an express contract. Accordingly, Claimant is precluded from recovering under its alternate theories. See, Unisys Corp. v Hercules, Inc., 224 AD2d 365, 367 (1st Dept. 1996).

Finally, the amount of damages warranted is not clearly established on this record. Accordingly, trial on the issue of damages will commence on March 18, 2002, and continue as required thereafter. The parties are instructed to furnish the court with pre-trial memoranda of law on the issue of damages on or before March 13, 2002.

February 1, 2002
White Plains, New York

Judge of the Court of Claims

[1]Exhibit "4" Affirmation in Support of Motions of Frederick J. Anton; Exhibit "A", Affidavit in Support of Cross Motion of Mark Maciulaitis, hereafter Agreement.
[2]Affidavit of Cynthia R. Clark, Esq., Page 2.
[3]"A fair reading of the attorney's affirmation, the hospital records and the defendant's deposition testimony compel the conclusion that no material triable issues of fact exist as to the claims of malpractice asserted against the defendant in the amended complaint as amplified by the bill of particulars. The fact that defendant's supporting proof was placed before the court by way of an attorney's affirmation annexing deposition testimony and other proof, rather than affidavits of fact on personal knowledge, is not fatal to the motion...(citations omitted)."

[4]The case cited by Claimant, concerning enforcement of a stipulation of settlement in a divorce case, is fairly unique for its reference to the use of a verified pleading in lieu of an affidavit in support of a motion for summary judgment. Hunter v Annexstein, 141 AD2d 449,453 (1st Dept. 1988). Use of a verified pleading as responsive affidavit has been more widely countenanced, provided it sets forth sufficient evidentiary facts. See, e.g., Travis v Allstate Insurance Company, 280 AD2d 394,395 (1st Dept. 2001); But, c.f., Pollnow v Poughkeepsie Newspapers, Inc., 67 NY2d 778,780 (1986) (in defamation action, complaint verified by infant plaintiff's mother, who did not have personal knowledge, insufficient to oppose motion for summary judgment and raise issue of fact as to falsity);Bethlehem Steel Corp. v Solow, 51 NY2d 870 (1980) (Defendants failed to show triable issue of fact. "Although defendants' verified answer may be used as an affidavit...that does not help defendants in this case for the answer sets forth no evidentiary facts."); Riverhead Building Supply, Corp. v Regine Starr, Inc., 249 AD2d 532, 533 (2d Dept. 1998) (Defendant's verified answer "...contained vague and generalized assertions regarding the quality of building materials supplied by the plaintiff and the adequacy of payments made by the defendants, it was patently inadequate to defeat the plaintiff's motion..." for summary judgment in suit by seller for goods bought and sold); Ostrowski v State of New York, 186 Misc 2d 890, 895 (NY Ct Cl 2001) (Summary judgment granted to non-moving Claimant, since "...the facts alleged in the claim...are not controverted, and the ministerial neglect of the court clerk is established through the pleadings, and liability by the defendant is established.").
[5]See, 58 NY Jur 2d Evidence and Witnesses § 564 (2000), as to the parol evidence rule generally.
[6]Exhibit "1", Affirmation in Support by Frederick J. Anton; Exhibit A-2, Affidavit of Mark Maciulaitis, Par. I.1, Page 00004.
[7]Ibid., Par. I.2, Page 00005.
[8]Ibid., Par. III, Page 00008.
[9]Ibid., Par. IV.1 through IV.1.2, Pages 00008-00009.
[10]Ibid., Par. IV.2, Page 00011.
[11]Ibid., Par. V.1, Page 00012.
[12]Described in the letter as "A review of historic utility invoices for the purpose of documenting errors in order to recover overpayments made to the utility."
[13] Examination Before Trial of Arthur Ammann, Page 119. The deposition testimony indicates that the percentage to be offered was "one or two percent." See, also, Examination Before Trial of Kirstine Nogiewich, Pages124-125.
[14]Examination Before Trial of Kirstine Nogiewich, Pages124-125. Her testimony was: "...[Mr. Ammann] informed...[Claimant] that the university might seek to do the negotiation with LILCO and that since that was outside of the scope of the contract, we would like to negotiate a lower rate....The university's negotiation directly with the utility provider....[was outside the scope of the contract]....[T]he contract said that the rate that was - that we would pay the contractor included negotiation, and since the university was going to do it, then the rate - we would offer them a lower rate...."
[15] An April 19, 1995 e-mail memorandum from Arthur Ammann to Michael DeMartis states: "This morning Kriss Nogiewich and I met with David discuss a reduction in their rate for the potential LILCO refund. I explained to David Price that since it now appears the University will have to pursue the refund it was our position that this transaction falls outside the scope of our contract. Mr. Price did not agree with this logic and felt that he is entitled to the full commission....His position is that his firm has spent a great deal of time auditing our bills which resulted in identifying this potential refund. He is more than willing to pursue this further with both LILCO and the PSC and feels confident that he will obtain a refund for us. The suggestion that the University pursue negotiations with LILCO was made on the basis that it might be more expeditious if higher level administrators from Stony Brook approached LILCO directly and not because of...[Claimant's] reluctance or inability to pursue this further...." [Exhibit "19", Affirmation in Support of Motion of Frederick J. Anton].
[16]Examinations Before Trial of Enrico Johnson (page 110); Mark Maciulaitis (pages 61-63); Kirstine Nogiewich (pages 124-125); Gerianne Sands (pages 65, 114, 116-118)].
[17] See, Also, Exhibit "19", supra, and Exhibit "20", an e-mail memorandum from Harry Snoreck, Vice President, dated May 2, 1995, directed to Michael DeMartis, Arthur Ammann, and Kriss Nogiewich: "...We have decided to go with the alternative suggested in Gerianne's [Sands, Esq.] All-In-1 of April 20. Please notify the...[claimant] that because we are pursuing recovery through our own efforts, we do not consider this to be covered under the contract and that they will have to proceed as necessary if they feel we are not in compliance with the contract. Please let me know when you do this, and have Gerianne review your letter of notification."
[18]Pages 116-117.
[19] Examination Before Trial of Arthur Ammann, Pages 13-14; see also, Examination Before Trial of Kirstine Nogiewich, Page 26.
[20] Examination Before Trial of Enrico Johnson, Pages 11, 23.
[21] Examination Before Trial of Carl E. Hanes, Jr., Pages 25-26,30-33.
[22] Exhibit "4", Affirmation in Support of Motion of Frederick J. Anton; Exhibit "A", Affidavit in Support of Cross Motion of Mark Maciulaitis; hereafter Agreement.
[23] Exhibit "1", Affirmation in Support of Motion of Frederick J. Anton; Exhibit A-2, Affidavit in Support of Cross-motion of Mark Maciulaitis, hereafter Bid Proposal, Par.I.2, Page 00005.
[24] Agreement, Par. 2.; Bid Proposal, Par. I.2, Page 00005.
[25] Agreement, Par. 4.
[26] Bid Proposal , Par. I.1 (a), Page 00004.
[27] Bid Proposal, Par. III, Page 00008.
[28] Bid Proposal, Par. V.1, Page 00012.
[29] Agreement, "Whereas.." clause; Bid Proposal, Par. I.1; I.2; III(d), Pages 00004-00005, 00008.
[30]Claimant's Memorandum of Law in Support of Motion, Page 40.
[31] Id.
[32]Exhibit #11.