        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

954
CA 13-00331
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


ENVIRONMENTAL TESTING & CONSULTING, INC.,
PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CITY OF BUFFALO, DEFENDANT,
AND BUFFALO URBAN RENEWAL AGENCY,
DEFENDANT-RESPONDENT.


LOTEMPIO & BROWN, P.C., BUFFALO (RAFAEL O. GOMEZ OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

HARRIS BEACH PLLC, PITTSFORD (H. TODD BULLARD OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Gerald J.
Whalen, J.), entered April 23, 2012. The order granted in part and
denied in part the motion of plaintiff and cross motion of defendant
Buffalo Urban Renewal Agency for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff appeals from an order denying that part of
its motion seeking partial summary judgment on liability with respect
to its second through fourth causes of action, for breach of contract,
and granting the cross motion of Buffalo Urban Renewal Agency
(defendant) for summary judgment dismissing those causes of action.
The parties entered into a contract whereby plaintiff, an
environmental testing and remediation company, agreed to perform
various services for homeowners who participated in defendant’s “Rehab
Program,” which provides funds to qualified homeowners seeking to
improve their properties. The contract documents specified the fee to
which plaintiff would be entitled for each of the three services
provided by plaintiff to the homeowners. According to plaintiff,
defendant was obligated under the contract to retain plaintiff to
perform between 220 and 260 lead paint tests, and an equal number of
clearance tests and risk assessments. Plaintiff contends that
defendant breached the contract because it retained plaintiff to
perform only 44 lead paint tests and no clearance tests or risk
assessments.

     We agree with defendant that the clear and unambiguous language
of the contract provided only for a “fee for services” arrangement
                                 -2-                           954
                                                         CA 13-00331

(see generally Bailey v Fish & Neave, 8 NY3d 523, 528; Village of
Hamburg v American Ref-Fuel Co. of Niagara, 284 AD2d 85, 88, lv denied
97 NY2d 603), and thus that Supreme Court properly dismissed the
second through fourth causes of action. Article 2 of the contract,
entitled “WORK TO BE PERFORMED,” refers to the “Lead Hazard Control
Fee Schedule,” which is set forth in plaintiff’s bid application. The
fee schedule, in turn, sets forth only the agreed-upon per-unit price
for each of the three services to be provided by plaintiff to the
homeowners; it does not state that defendant is required to hire
plaintiff to perform any minimum number of services.

     We reject plaintiff’s contention that the Scope of Services
document, which is not signed by either party and is not referenced in
the contract, requires a different result. Even assuming, arguendo,
that the Scope of Services document is part of the contract, we note
that it does not guarantee that plaintiff will be hired to perform a
minimum number of services. Instead, that document merely recites
plaintiff’s projection that, under the contract, it likely would
provide all three services to between 110 and 130 houses each year.
We agree with defendant, moreover, that it was not in a position to
guarantee plaintiff a specific amount of work inasmuch as it was
ultimately the decision of the homeowners participating in defendant’s
“Rehab Program” whether to retain plaintiff.




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
