Acranom Masonry, Inc. v. Wenger Constr. Co.

• Decision Date: 29 September 2017
• Docket Number: 14-CV-1839 (PKC)
• Parties: ACRANOM MASONRY, INC., Plaintiff, v. WENGER CONSTRUCTION CO., INC., Defendant.
• Court: U.S. District Court — Eastern District of New York

ACRANOM MASONRY, INC., Plaintiff, v. WENGER CONSTRUCTION CO., INC., Defendant.

14-CV-1839 (PKC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 29, 2017

MEMORANDUM & ORDER

PAMELA K. CHEN, United States District Judge:

Plaintiff Acranom Masonry, Inc. ("Acranom") brings this action against Defendant Wenger Construction Co., Inc. ("Wenger") seeking compensation for work that Acranom performed, as a subcontractor to Wenger, on a construction project commissioned by the New York City School Construction Authority ("SCA"). Before the Court is Defendant's motion for partial summary judgment. For the reasons stated below, Defendant's motion is granted in part and denied in part.

BACKGROUND

I. Relevant Facts¹

A. Pre-Contract Communications

In February 2011, Wenger submitted a bid to the SCA for a contract to complete a construction project at a public school in Brooklyn, New York (the "Project"). (Affidavit of DavidWenger ("Wenger Aff.")², Dkt. 32-9, ¶ 3; Dkt. 32-10 at 7.) While that bid was pending, Wenger solicited price quotes from subcontractors for the completion of certain masonry work within the scope of the Project. (Def.'s 56.1 Stmt., Dkt. 33, ¶ 2; Pl.'s 56.1 Response, Dkt. 40, ¶ 2.)

Acranom submitted a price quote to Wenger for the masonry work on or around March 29, 2011. (See Dkt. 32-12.) On March 30, 2011, evidently after a phone call with a representative of Wenger, an Acranom project manager, Anthony Stewart, sent Wenger an email to update Acranom's price quote to reflect the following additions: (i) "Paint removal and gr[a]ffit[i] paint cost 212,000"; and (ii) "Brick replacement 65 per ft 18000 x 65 equals[] 1,170,000." (Dkt. 32-12 at ECF³ 2.)

On or around April 18, 2011, the SCA officially awarded the Project to Wenger. (Dkt. 32-10 at 7.) The SCA and Wenger entered into a contract (the "Prime Contract") that established, among other things, the scope of the Project, the terms and conditions of Wenger's completion of the Project, and a contract price of $4,269,000. (Dkt. 32-10; Dkt. 39 at ECF 50-111.) Two days later, on April 20, 2011, Wenger's President, David Wenger, sent a letter to Acranom, notifying Acranom that "Wenger will proceed with drafting a contract for the work based upon your March 29, 2011 quote . . . and subsequent March 30, 2011 e-mail confirming the 18000 square foot brick removal/replacement provision unit cost of 65/ sq.ft. The total contract cost will be $1,960,000.00." (Dkt. 32-13.)

On May 2, 2011, Acranom project manager Anthony Stewart sent an email to David Wenger regarding the cost of a performance bond for the work that Acranom would perform forWenger. (Dkt. 32-18.) In the email, Stewart stated that "the cost of the Bond for 100% of the contract value . . . is $23,769." (Id.)

B. The Subcontract

On or around May 5, 2011, Wenger and Acranom entered into a subcontract (the "Subcontract") under which Acranom undertook to perform certain obligations, including the completion of certain masonry work, in exchange for a total price of $1,960,000. (Dkt. 32-14.)

Article 1 of the Subcontract incorporates certain terms of the Prime Contract between Wenger and the SCA:

The [Prime Contract], with the Plans, Specifications, Special Provisions, Addenda, and all other documents by reference forming a part of the [Prime Contract] between the [SCA] and [Wenger] are hereinafter collectively referred to as the "General Contract", which is made a part hereof, and are deemed attached hereto.

[ . . . ]

[I]t is agreed that the [Prime Contract], as so defined shall be held and taken as a part of this Subcontract in every particular.

(Dkt. 32-14 (Subcontract) Art. 1.)

Article 2 of the Subcontract defines the scope of the work that Acranom agreed to perform under the Subcontract. Specifically, Acranom agreed to "furnish all necessary management, supervision, labor, materials, tools, supplies, equipment and/or any other act or device required to diligently and fully perform and complete" the work set forth on Rider A of the Subcontract. (Dkt. 32-14 (Subcontract) Art 2.) Rider A of the Subcontract, in turn, provides that Acranom would be responsible for "[f]urnishing and installation of all labor, materials, tools, accessories, equipment and appliances to perform the Masonry, Exterior Paint Removal, Graffiti Resistant Coatings, Membrane Waterproofing work as more fully described in [certain] Drawings . . . prepared by School Construction Authority." (Dkt. 32-14 (Subcontract) at 14-17.) Rider A listsmore than 20 such drawings, one of which contains a "provision" for the "replacement of bricks per face brick replacement detail - approx. 18,000 SF." (Dkt. 32-11 (Drawing No. T003.00).)

Rider A also contains a section titled "Unit Prices, Allowances, Alternates and Provisions." (Dkt. 32-14 (Subcontract) at 17.) That section states, in relevant part:

No Provision is authorized to be commenced or be performed. In order to commence performance of any Provision, Subcontractor must receive a written construction authorization signed by a corporate principle [sic] as well as comply with SCA provision procedures and requirements [sic].

[ . . . ]

The following provisions are included in the base contract cost: Removal and replacement of bricks per face replacement detail - Approximately 18,000 square feet.

(Id.) But that section does not specify a unit price for the brick removal and replacement, nor does any other provision of Rider A or the Subcontract. (See generally Dkt. 32-14 (Subcontract).)

Article 3 of the Subcontract specifies the total price of the contract, providing that "[Wenger] agrees to pay [Acranom] for the work described [in Article 2 and Rider A], the total price of $1,960,000." (Dkt. 32-14 (Subcontract) Art. 3.) Article 3 also contemplates, however, that there could be additions or deductions to the scope and price of the Subcontract: "Payment of this amount is subject to additions or deductions within the provisions of this Subcontract and of the other documents to which this Subcontract is subject." (Id.)

Article 4 of the Subcontract specifies, among other things, the method and timing of Wenger's payments to Acranom under the Subcontract. In relevant part, the provision states that, "[Wenger] will pay [Acranom] within fifteen (15) days after [Wenger], as a condition precedent, receives payment from the [SCA] for [Acranom's] items of work on the quantities paid for by the [SCA] and on the basis and in the manner stipulated in the [Prime Contract], (which [Acranom] shall accept as agreed) and on the basis of ninety-five (95%) percent of the value of Subcontractor'sitems of work at the prices stipulated." (Dkt. 32-14 (Subcontract) Art. 4.) The provision also states that "[Wenger] reserves the right to issue joint checks and/or direct checks to [Acranom] and/or its vendors, suppliers or subcontractors, or any of [Acranom's] creditors having potential lien rights against the work." (Dkt. 32-14 (Subcontract) Art. 4.)

Article 19 of the Subcontract addresses the possibility of "extra" work by Acranom beyond the scope of the Subcontract:

It is expressly understood that the amount hereinabove stated for performance of the work herein, represents the full consideration to be paid for the said work and in no event shall there be any claims for "extras" or time delays against [Wenger], unless [Wenger] agrees, in writing, to pay an extra amount. Any deviation from the foregoing provisions shall be null and void. Any changes, modifications or extension of the work to be performed herein may only be done by written order executed by [Acranom] and by an officer of [Wenger].

(Dkt. 32-14 (Subcontract) Art. 19.)

Article 20(a) of the Subcontract addresses the possibility of a disagreement between Wenger and Acranom about work performed by Acranom during the Project:

When work is required to be done but the parties cannot agree whether it is extra work or contract work or cannot agree on the value of the work ordered to be done, [Acranom] shall perform the work without delay upon written order from [Wenger] . . . . In the event [Acranom] proceeds with work under this Article without an agreement that the work is in fact extra and/or an agreement on the value of the work to be done, [Acranom] shall keep complete and acceptable time and material records of its actual costs in performing said work and present said records to a duly authorized representative of [Wenger] on a daily basis for signature. [Wenger] is to be provided with the all originals [sic]. Failure to strictly comply with this provision will constitute a waiver of any claim on account of such work.

(Dkt. 32-14 (Subcontract) Art. 20.)

Article 20(b) of the Subcontract addresses the timing of certain types of damages claims that Acranom may make under the Subcontract:

[Acranom] shall make all claims for damages because of any claimed default, breach, delay, interference, act or omission of [Wenger] in writing within five (5) days after the occurrence of such act or omission. If [Acranom] fails to make written notice of claim within the time specified, stating the nature of the claim, the costs associated with the claim, the work delayed and its scheduled effect on the work to be subsequently performed, such failure shall constitute a waiver of the claim and preclude recovery.

(Dkt. 32-14 (Subcontract) Art. 20.)

Article 27(B) of the Subcontract sets forth certain "Special Conditions," including the following: "1. This order supersedes all prior estimates and/or proposals. 2. [Acranom] to provided [sic] acceptable 100% Payment & Performance Bonds (prerequisite for payment)." (Dkt. 32-14 (Subcontract) Art. 27(B).)

Article 29 of the Subcontract contains the following choice-of-law provision: "any interpretation of this Contract shall be governed by the Laws of the State of New York." (Dkt. 32-14 (Subcontract) Art. 29.)

Article 31 of the Subcontract contains the following merger clause:

This writing comprises the full and entire agreement between the

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