Maguire Co., Inc. v. Herbert Const. Co., Inc., 94 Civ. 1261 (RLC).

• Decision Date: 30 October 1996
• Docket Number: No. 94 Civ. 1261 (RLC).,94 Civ. 1261 (RLC).
• Citation: 945 F.Supp. 72
• Parties: MAGUIRE COMPANY, INC., Counterclaim Plaintiff, v. HERBERT CONSTRUCTION COMPANY, INC., Counterclaim Defendants.
• Court: U.S. District Court — Southern District of New York

945 F.Supp. 72

MAGUIRE COMPANY, INC., Counterclaim Plaintiff, v. HERBERT CONSTRUCTION COMPANY, INC., Counterclaim Defendants.

No. 94 Civ. 1261 (RLC).

United States District Court, S.D. New York.

October 30, 1996.

Ross & Cohen, L.L.P. (Charles Fastenberg, Andrew L. Richards, of counsel), New York City, for Herbert Construction Company.

Martin S. Rapaport (Martin S. Rapaport, Karen Newirth, of counsel), New York City, for J.P. Maguire Company, Inc.

AMENDED OPINION

ROBERT L. CARTER, District Judge.

This is a counterclaim action for damages resulting from breach of a subcontract concerning a construction project ("the Roof Modification Project") which involved the installation of two new cooling towers and a piping system at certain floors of the American Express Tower at 3 World Financial Center in Manhattan. Counterclaim plaintiff is J.P. Maguire Company, Inc. ("Maguire") and the counterclaim defendant is Herbert Construction Company ("Herbert"). Presently before the court is Herbert's motion for judgment as a matter of law, pursuant to Rule 50, F.R.Civ.P., or in the alternative, for a new trial pursuant to Rule 59, F.R.Civ.P.

I.

Herbert was the general contractor for the Roof Modification Project and Maguire was Herbert's mechanical subcontractor pursuant to a written subcontract entered into in January, 1993. The subcontract was incorporated by reference into a purchase order executed by Maguire and Herbert and was dated August, 1992. (Admitted Facts, Joint Pre-Trial Order at 29). Maguire began work in or about September, 1992. Part of the work Maguire was to have performed was to join 12-inch copper pipes to 12-inch cast bronze fittings by a process known as brazing. Each bronze fitting is used to essentially join together two ends of copper pipe that have been inserted into the fitting. Inside of each fitting are metal rings that when heat from a torch is applied to them, i.e., brazed, the metal melts and spreads to fill the space between the fitting and the pipe end. The metal then solidifies so as to completely seal and join the pipe ends to the fitting. The specifications for the brazing of the fittings specified that Maguire use either Bcup-5 or Bag-3 braze metal as the metal material to seal the fitting and pipes. Maguire used Bcup-5. (Id. at 30).

In mid-June 1993, Maguire began testing the piping system it had installed. Leaks were discovered on some of the 12-inch fittings that Maguire had brazed to the pipes. At Herbert's request and direction, Maguire attempted to repair several fittings in place, and began installation of replacement fittings and pipe in areas where fittings had to be cut out of the system because the repairs were unsuccessful. (Id. at 31-32).

Maguire demanded that Herbert pay for the costs that Maguire incurred in repairing and replacing the cast bronze fittings on which leaks were observed. Herbert did not pay these costs. (Id. at 32). Maguire continued with the repair and replacement work until September 10, 1993 when it ceased working on the project alleging that Herbert failed to make payment. Negotiation to resolve Maguire's claim for payment failed to resolve the dispute and Maguire and Herbert accused each other of having breached the subcontract. (Id. at 33). Herbert claimed that the leaks were caused by Maguire's poor workmanship in brazing the fittings and that it therefore did not have to pay Maguire's repair costs. Maguire countered that it performed in accordance with the prevailing industry standards and that Herbert breached the subcontract by refusing to pay Maguire for the repair and replacement work which was caused by Maguire's use of defective specifications.

The case came for jury trial on July 15, 1996 and lasted through July 18, 1996. The jury found for Maguire and awarded it $250,000 in damages.

Herbert now argues that the court should grant a judgment in its favor as a matter of law because Maguire failed to present evidence to satisfy its burden of proof and failed to present evidence to support the verdict. In the alternative, Herbert argues for a new trial on the grounds that the verdict was against the weight of the evidence.

II.

A motion for judgment as a matter of law, pursuant to Rule 50(b), F.R.Civ.P., "will be granted only if (1) there is a complete absence of probative evidence to support the verdict for the non-movant[,] or (2) the evidence is so strongly or overwhelmingly in favor of the movant that reasonable and fair minded [jurors] in the exercise of impartial judgment could not arrive at a verdict against [the movant]." Armstrong v. Commerce Tankers Corp., 423 F.2d 957, 959 (2d Cir.), cert. denied, 400 U.S. 833, 91 S.Ct. 67, 27 L.Ed.2d 65 (1970). The district court is required to consider the evidence in the light most favorable to the party against whom the motion was made and to give that party the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence. Concerned Area Residents for the Environment v. Southview Farm, 34 F.3d 114, 120 (2d Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1793, 131 L.Ed.2d 721 (1995). The court "`cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury.'" Id. (citation omitted).

A new trial motion may be granted if "the jury has reached a seriously erroneous result, or ... the verdict is a `miscarriage of justice' i.e.... the verdict is against the great weight of the evidence." Mallis v. Bankers Trust Co., 717 F.2d 683, 691 (2d Cir.1983). In considering such a motion, the court may weigh the evidence and need not view it in the light most favorable to the non-moving party. Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir.1978). Such a motion will not be granted, however, "unless it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done." Metromedia Co. v. Fugazy, 753 F.Supp. 93, 96 (S.D.N.Y.1990) (Carter, J.), aff'd, 983 F.2d 350 (2d Cir.1992), cert. denied, 508 U.S. 952, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993) (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure § 2803 at 32 (1973)). A verdict may not be set aside merely because the judge would have reached a different result as the finder of fact, but only if "it is quite clear that the jury has reached a seriously erroneous result." Bevevino, 574 F.2d at 684 (quoting 6A Moore's Federal Practice ¶ 59.08[5] at 59-160 to 59-161 (1973)). The moving party has the burden to prove that it is entitled to a new trial.

III.

At trial, Maguire alleged that Herbert had breached the subcontract by providing defective specifications — the cause of the leaking fittings — which prevented Maguire from completing performance. Maguire contended that it was damaged by Herbert's breach in the amount of $250,000, the amount allegedly promised to Maguire for performing the repair/replacement work, or at the very least, in the amount of $30,000 allegedly promised by Herbert to enable Maguire's union labor to continue to perform the repair/replacement work.

Herbert denied that the specifications were defective and claimed that the leaking fittings were caused by Maguire's poor workmanship and thus Herbert was not responsible for any of Maguire's costs related to repairing and replacing the fittings. Herbert further argued that Maguire signed a "lumpsum" subcontract under which Maguire was to be paid a set amount of money irrespective of whether there arose the need for Maguire to expend extra labor and money. Herbert therefore contended that it did not breach the subcontract and that it was also justified in ordering a stop-payment on the $30,000 check issued to Maguire since payment was conditioned on Maguire completing the project on a specified date, which Maguire failed to do.

Under New York law, a party seeking recovery for breach of contract must show: (1) a contract; (2) performance by the party seeking recovery; (3) breach of the contract by the other party; and (4) damages attributable to the breach. Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525 (2d Cir.1994).

Maguire thus had the burden at trial to prove by a preponderance of the evidence that it did not breach the subcontract because it performed in a skillful and workmanlike manner; that Herbert breached because the leaks in the fittings were caused by faulty specifications given to Maguire; and, that Maguire was damaged in the amount of $250,000 because Herbert breached its promise to pay for the extra repair and replacement work or, at the very least, its promise to pay Maguire $30,000.

As to the present motion for judgment as a matter of law, Herbert contends that Maguire failed to meet its burden of proof. In particular, Herbert claims that Maguire's metallurgy expert's testimony was speculative and contradictory regarding Maguire's claim that defective brazing specifications caused the leaks, and that the expert failed to consider whether the quality of Maguire's workmanship could have caused the leaks. Herbert also argues that its alleged promise to pay for the repair work was legally insufficient because there was no consideration since Maguire had a pre-existing duty to perform repairs and pay for the costs of those repairs pursuant to the subcontract. Finally, Herbert argues that Maguire was not alternatively entitled to the $30,000 promised for union labor because Maguire never met the condition on which the payment was based.

A. Skilled Workmanship vs. Defective Specifications

Regarding Maguire's skilled workmanship, Maguire presented three witnesses — Maguire's field supervisor, project manager, and shop foreman, each of whom had hands-on oversight of Maguire's workmen during the time period at issue — who testified that Maguire's brazing work was approved by Herbert's agents: (1) Lucius Pitkin ("Pitkin"), a company hired to oversee Maguire's work, which marked "o.k." on each...