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
[*2]
or misstated is generally inadmissible to add or vary the
writing "[citations omitted]." id. p. 443
In all contracts "[t]here is implicit...an implied covenant of fair dealing and good faith."
VanWalkenburgh, N & N Inc. v Hayden P. Co., 30 N.Y.34 34, 46, 300 NYS2d 329, 333,
and, "[i]t is well settled that in order to form a binding contract, there must be mutual assent to
the terms...thereof..." Gupta v University of Rochester, 57 AD2d 731, 395 NYS2d 566.
In Cheng v Madansky Leasing Co., Inc., 73 NY2d 453, 541 NYS2d 742, the Court
as stated in BT Commercial Corp. v Blum, 170 AD2d 134, 572 NYS2d 10 at p.11 "[I]t is
established that an ambiguity in a contract must be construed against the party who drafted it." In
Malo v Gardino, 184 AD2d 872, 585 NYS2d 529 at p. 530 the Court said that
"[W]hether a writing is ambiguous is a question of law to be resolved by the Court
(VanWagner Adv. Corp. v S & M Enters., 67 NY2d 186, 191, 501 NYS2d 628...)...[I]f
there is ambiguity in the terminology used, the equivocally can be resolved without reference to
extrinsic evidence, the issue is to be determined as a question of law for the Court (Hartford
Acc. & Ind. Co. v Wesolowski, 33 NY2d 169, 172, 350 NYS2d 895...)."
In Brown Bros. Elec. Constr. v Beam Constr. Corp., 41 NY2d 397, 400 the Court
said an "attempt to interpret a contract so as to give realization to the parties' reasonable
expectations" should be the guide. In doing so, "consideration must be given to the express