Volt Elec. NYC Corp. v. A.M.E., Inc.

• Decision Date: 16 February 2022
• Docket Number: 20 Civ. 4185 (PAE),21 Civ. 1743 (PAE), 21 Civ. 2986 (PAE)
• Citation: 586 F.Supp.3d 262
• Parties: VOLT ELECTRIC NYC CORP., Plaintiff, v. A.M.E., INC., and Hemant R. Patel, Defendants. Volt Electric NYC Corp., Plaintiff, v. Amit Patel, Glenn Hertzberg, and Paul Yingling, Defendants. A.M.E., Inc., Plaintiff, v. Jimmy Branna, Elite Consulting LLC, and John Kempf, Defendants.
• Court: U.S. District Court — Southern District of New York

586 F.Supp.3d 262

VOLT ELECTRIC NYC CORP., Plaintiff,
v.
A.M.E., INC., and Hemant R. Patel, Defendants.

Volt Electric NYC Corp., Plaintiff,
v.
Amit Patel, Glenn Hertzberg, and Paul Yingling, Defendants.

A.M.E., Inc., Plaintiff,
v.
Jimmy Branna, Elite Consulting LLC, and John Kempf, Defendants.

20 Civ. 4185 (PAE)
21 Civ. 1743 (PAE), 21 Civ. 2986 (PAE)

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

Signed February 16, 2022

586 F.Supp.3d 268

Karl Judah Silverberg, Silverberg P.C., Central Islip, NY, for Volt Electric NYC Corp., Jimmy Branna, Elite Consulting LLC, and John Kempf.

Danielle Elizabeth Cohen, Tesser & Cohen, Hackensack, NJ, for A.M.E., Inc., Hemant R. Patel, Amit Patel, Glenn Hertzberg, and Paul Yingling.

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

Two subcontractors, A.M.E., Inc. ("AME") and Volt Electric NYC Corp. ("Volt"), entered into an agreement for Volt to do certain electrical work for AME on a building project for the Jewish Theological Seminary in New York City. The central issue in this litigation is whether that agreement obligated Volt to complete "final terminations" for the project. "Final terminations" is an engineering term of art referring to the meticulous work needed to connect loose wires to devices and panels. Volt did not complete that work because it did not believe it was obligated to do so. Conversely, believing that Volt was required—and failed—to complete final terminations, AME withheld full payment of the contract price and expended resources to complete the job. Volt and AME, each contending the other owes it money arising from these events, has sued the other (and associated entities and persons) in three related lawsuits.¹

In the first lawsuit, Volt brings—against AME and its president, Hemant R. Patel—common law claims for breach of contract, unjust enrichment, and account stated, and a claim for breach of trust under Article 3-A of the New York Lien Law, see N.Y. Lien Law § 70 et seq. ("Lien Law"). See No. 20 Civ. 4185 (S.D.N.Y.) ("Volt I "), Dkt. 1 ("Volt I Compl."). In that suit, AME has counterclaimed for breach of contract, construction defects, breach of covenant of good faith and fair dealing, delay, and lost profits. Volt I , Dkt. 6.

In a second lawsuit brought by Volt arising from the same events, Volt brings—against AME executives Amit Patel, Glenn Hertzberg, and Paul Yingling—claims for breach of trust and fiduciary duty under the New York Lien Law. See No. 21 Civ. 1743 (S.D.N.Y.) ("Volt II "), Dkt. 1 ("Volt II Compl.").

In the third lawsuit, AME brings (1) against Jimmy Branna, Volt's owner, a claim of fraud, and (2) against Elite Consulting LLC ("Elite"), a consultant Volt hired for the project, and John Kempf, an electrician at Volt, claims of negligence. See 21 Civ. 2986 (S.D.N.Y.) ("AME "), Dkt. 1 ("AME Compl.").

Volt now moves for summary judgment on its breach of contract claim in Volt I and Lien Law claims in Volt I and Volt II. It also, on behalf of Branna and Kempf, moves to dismiss AME's fraud and negligence

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claims in AME.² AME moves for partial summary judgment, limited to Volt's Lien Law claims in Volt I and Volt II.

For the following reasons, the Court grants in part and denies in part Volt's motions, and grants AME's motion for partial summary judgment.

I. Background

A. Factual Background³

1. The Parties

Non-party Henick-Lane, Inc. ("Henick-Lane") is the mechanical contractor for a construction project at the Jewish Theological Seminary, located at 3080 Broadway, New York, New York (the "JTS Project"). JSF ¶ 3; Volt 56.1 ¶ 1; Volt I , Dkt. 46 at 1. Henick-Lane engaged AME as a subcontractor on the JTS Project. AME in turn engaged Volt as a sub-subcontractor, to perform certain electrical work on the JTS Project. JSF ¶¶ 1, 3; see infra Section I.A.2.

AME is a building management systems control contractor that performs work in New York City and surrounding areas. JSF ¶ 1. Hemant R. Patel is alleged to be AME's President and CEO.⁴ Volt I Compl. ¶ 3. Amit Patel is alleged to be an AME Vice President, responsible for AME's day-to-day operations. Volt II Compl. ¶ 2. Glenn Hertzberg is an AME Vice President. He is the AME representative who engaged in the initial contract negotiations with Volt. Hertzberg Decl. ¶¶ 1, 3. Paul Yingling is AME's Operations Manager. He oversaw the AME project managers

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who managed day-to-day installation on the JTS Project. Yingling Decl. ¶¶ 1, 6.

Volt is an electrical subcontractor that performs work throughout New York. JSF ¶ 2. Jimmy Branna is Volt's president. Branna Decl. ¶ 1. From about the beginning of 2020, James Scaturro has been Volt's Vice President. Scaturro Decl. ¶ 1.⁵ Scaturro at all relevant times also has been (and continues to be) Elite's only member and employee. Id. ¶¶ 2, 6. For the JTS Project, Elite supported Volt by acting as a senior supervisor, ensuring that projects had the proper manpower and supplies, and addressing issues that arose during performance. Id. ¶¶ 7, 9. Scaturro at all times reported directly to Branna. Id. ¶ 8. John Kempf is a licensed Master Electrician who has been employed by Volt since about August 2018. Kempf Decl. ¶¶ 4–5. Kempf states that he had no role in the JTS Project. Id. ¶ 7.

2. Volt's Involvement with the JTS Project

In early January 2019, Hertzberg reached out to Branna to discuss Volt's potential involvement in the JTS Project as a sub-subcontractor to perform electrical work on the building. Branna Decl. ¶ 5. Soon thereafter, the two met at the JTS Project site and discussed the project. Id. ¶ 6; Volt 56.1 ¶ 2; AME 56.1 ¶ 1.

During that conversation, Branna told Hertzberg that Volt, although able to do the electrical work needed for the JTS Project, would be unavailable to complete final terminations—meticulous work involving the connection of loose wires to devices and panels—for the project. Branna Decl. ¶ 8; Hertzberg Decl. ¶ 4; AME 56.1 ¶ 2. Branna attests:

I expressly told Glenn [Hertzberg] at the project walk-through that Volt would not do the final termination work. I excluded final terminations because the manpower I had available would not support termination work under the compressed schedule expected on the JTS Project. Volt's work was focused on installing electrical conduit piping and pulling wires through the conduit—as I like to call it, the "grunt work." Glenn [Hertzberg] told me that AME had plenty of men that could handle the more intricate final termination work, telling me, "AME has 200 technicians and will be able to take on that part of the job."

Branna Decl. ¶ 8.

a. The Volt Proposal and AME Purchase Order

On January 12, 2019, AME sent Branna, via email, a series of documents purporting to show plans for the overall JTS Project. The cover email states, inter alia , that it attached the "AME Scope of work." Yingling Decl. ¶ 5; see Project Plans. The Project Plans span hundreds of pages and show highly detailed engineering and architectural specifications. The first page of the plans states at the top, "Tod Billiesien Architects | Partners," identifies as the "Project" "The Jewish Theological Seminary – 21st Century Campus," and lists as the "Date Returned" July 5, 2018. Project Plans at 5.

On January 16, 2019, Volt submitted to AME a written proposal with a quote for Volt's estimated labor on the JTS Project. JSF ¶ 4(a); see Volt Proposal. The top of the Volt Proposal states, in bolded, underlined, and italicized font, "Scope of Work"; the only item below that header reads, "Furnish labor and material to install control wiring as per Tod Williams Billiesien architect drawings M-100.02, M-101.02, M-102.02, M-103.02, M-104.02, M-105.02, and

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M-106.02 dated 07/24/17." Volt Proposal. Below the "Scope of Work" section is another header in bolded, underlined, and italicized font, which reads "Qualifications." Among the various items in the hyphenated lists that follows is the sentence, "Final terminations are to be done by others." Id. The Volt Proposal lists a purchase price of $356,000. Id.

On January 30, 2019, Hertzberg signed the Volt Proposal, which includes a note stating, "Will replace with formal AME PO by Feb 1, 2019." Id.

On February 4, 2019, Hertzberg signed, and AME sent to Volt, a purchase order virtually identical to the Volt Proposal. JSF ¶ 4(b); see AME PO. Like the Volt Proposal, the AME Purchase Order includes bolded, underlined, and italicized "Scope of Work" and "Qualifications" sections, along with the "Final terminations are to be done by others" language and a purchase price of $356,000. AME PO.

b. The Subcontract

Sometime in early February 2019, AME sent Volt a contract entitled "Subcontract Agreement," which lists a start date of February 1, 2019 and purchase price of $356,000. See Subcontract at 1, 16. Volt adduces evidence that AME sent it the Subcontract on February 4, 2019—the same day AME sent Volt the AME Purchase Order. See Volt 56.1 ¶ 3(c); see also February 4, 2019 email (email correspondence on February 4, 2019 in which Hertzberg forwards Branna an email stating, inter alia , "[a]ttached is the subcontract & PO"). Volt asserts that when AME sent Volt the Subcontract, it attached the Volt Proposal and AME Purchase Order. Volt 56.1 ¶ 3(c); February 4, 2019 email. On February 11, 2019, Branna signed the Subcontract. Subcontract at 16. Nobody signed the Subcontract on AME's behalf.

The Subcontract is the governing agreement.⁶ Its relevant provisions are reproduced below⁷ :

1.1 The "Subcontract" consists of the following documents: (1) this instrument, which shall be known as the "Subcontract Form"; (2) all exhibits to the Subcontract Form; (3) the Prime Contract between the Owner and AME, including all incorporated plans, specifications and other documents forming the Prime Contract; and (4) any subsequent amendments or modifications to both the Prime Contract and this Subcontract, including, but not limited to, Change Orders. Together, these shall be known as the "Subcontract Documents." The

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