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THE TYPOGRAPHICAL ERROR IN THE CONTRACT RENDERED A CRUCIAL SENTENCE AMBIGUOUS; THE ERROR COULD NOT BE CORRECTED WITHOUT POSSIBLY ALTERING THE PARTIES’ INTENT; THEREFORE EXTRINSIC EVIDENCE IS NECESSARY TO INTERPRET THE CONTRACT (FIRST DEPT).

The First Department, in full-fledged opinion by Justice Webber, over an extensive two-justice dissent, determined there was a typographical error in the sentence describing the effective date of the contract which rendered the contract ambiguous. The dissent argued the intended meaning of the sentence was clear and the error should be corrected by the court: The effective date of the contract was crucial to a determination whether the contract was enforceable or had expired:

… [W]e are not ascribing one interpretation over the other. Rather, we are pointing out the multiple reasonable interpretations and concluding that additional information is necessary to ascertain the proper interpretation (see Castellano v State of New York, 43 NY2d 909 [1978]). In Castellano, when faced with a word in a lease clause that was grammatically inconsistent with the rest of the lease, the Court considered the different ways the parties proposed to change the clause to render it grammatically correct, both of which were reasonable. Each required altering a word in the lease. Rather than choosing one alteration over another, the Court found that there should be an exploration to ascertain the proper interpretation. …

… [T]hese are not “inadvertent errors,” or a “mistake” that can be corrected without altering the intent of the parties … . While “mistakes in grammar, spelling or punctuation should not be permitted to alter, contravene or vitiate manifest intention of the parties as gathered from the language employed” … , the [contract language] cannot be rendered grammatically correct without possibly altering the parties’ intent. “[T]he question of whether an ambiguity exists must be ascertained from the face of an agreement without regard to extrinsic evidence” … . Here, the … language is literally unclear and ambiguous and must be interpreted in light of extrinsic evidence. Mak Tech. Holdings Inc. v Anyvision Interactive Tech. Ltd., 2022 NY Slip Op 07507, First Dept 12-29-22

Practice Point: Although a court can correct an obvious typographical error in a contract, here the majority concluded there was more than one way to make the language grammatically correct, rendering the contract ambiguous. Extrinsic evidence was therefore necessary to interpret the contract.

 

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