Plaintiff-Contractor Awarded Intended Contract Rate After Bench Trial, No “Prevailing Party” For Purposes of Fee Shifting Provision

Posted: August 1, 2025 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Breach of Contract, Contract Interpretation, Fee Shifting/Prevailing Party

Plaintiff-Contractor Awarded Intended Contract Rate After Bench Trial, No “Prevailing Party” For Purposes of Fee Shifting Provision

On June 23, 2025, Justice Melissa A. Crane issued a decision following a bench trial, awarding a contractor the rate intended by the parties rather than a rate that was the product of mutual mistake, and finding that neither party was entitled to invoke the contract’s fee-shifting provision. The case is Titan Constr. Servs., LLC v Board of Mgrs. of PS 90 Condominium, Index No. Index No. 652243/2021.

In a July 2016 contract with defendant PS 90 Condominium, plaintiff Titan Construction Services agreed to repair the terra cotta at defendant’s condominium. Titan sued to enforce the rate of $285 per square inch that appeared on a bid form annexed to the contract. Justice Crane had denied Titan’s motion for summary judgment and set the matter down for a bench trial as to whether the parties agreed to a particular price and, if not, what a reasonable price would be.

After trial, Justice Crane found that the parties had agreed on price, so did not reach the second question:

. . . it would appear no party disputes that it was a mistake to append the April bid form containing the bid of $285 per square inch to the contract.

Plaintiff does not argue that a court will reform the instrument to do what is reasonable in the face of evidence of actual intent. Rather, PLAINTIFF ADMITS that "Where a written instrument fails to conform to the intended agreement between the parties whether caused by the mutual mistake of the parties, however induced, or of the mistake of one party and fraud of the other, or for some other reason a court will reform the instrument so as to make it conform to the actual agreement between the parties" (Pl Post Trial Br. [EDOC 115] at pg 17). This position comports with the law. "Where there is no mistake about the agreement and the only mistake alleged is in the reduction of that agreement to writing, such mistake of the scrivener, or of either party, no matter how it occurred, may be corrected." . . .

Unfortunately for plaintiff, the evidence shows that the parties had meant to agree to $2.06 a square inch.

Slip op., pp. 2-3 (emphasis in decision, internal citations omitted.)

The April 2016 bid form calling for $285 per square inch was attached to the July 2016 contract but PS 90 Condominium signed the July contract, with that attachment, in error: The “May 16, 2016 bid submission . . . which post dates the April bid submission, and is Titan's final bid . . . lists a square inch price of $2.06 . . ..”, slip op., p. 3 (emphasis in decision), and both parties performed the first phase of the contract at $2.06 per square inch. Id., pp. 3-4

The contract was extended to a second phase of work, and Titan admitted at trial “that the bid unit pricing meant that the contractor would perform additional work at the same unit price.” Slip op., p. 4.

Justice Crane therefore applied the $2.06 per square inch rate to Titan’s unpaid work which, after deducting $34,415.00 for work PS 90 Condominium showed to be defective, led to an award of $59,385.04, plus interest. “As Titan has not proved its case with respect to the unit price, and defendant has largely failed to prove its counterclaims, neither party can be considered the prevailing party for purposes of the attorney fee provision of the contract.” Id., p. 8.

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning construction or other contractual disputes.