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JOHNSON CONTROLS, INC. v. ROWLAND TOMPKINS CORP.

April 17, 1984

JOHNSON CONTROLS, INC., Plaintiff, against ROWLAND TOMPKINS CORPORATION and FEDERAL INSURANCE COMPANY, Defendants; JOHNSON CONTROLS, INC., Third-Party Plaintiff, against POWER AUTHORITY OF THE STATE OF NEW YORK, Third-Party Defendant.


The opinion of the court was delivered by: LOWE

MEMORANDUM OPINION AND ORDER

MARY JOHNSON LOEW, D.J.

 BACKGROUND

 On July 13, 1983, this Court rendered a Memorandum Opinion and Order addressing three motions in this case. First, was the motion by the Power Authority of the State of New York (PASNY) to dismiss the third-party complaint brought against it by Johnson Controls, Inc. (JCI), the plaintiff and third-party plaintiff in this action, respecting counterclaims asserted against JCI by the defendant Rowland Tompkins Corporation (RTC). The Court denied PASNY's motion, finding that: 1) as a procedural matter, Rule 14(b) of the Federal Rules of Civil Procedure permits a plaintiff to implead a third party who may be liable to him for indemnity or contribution on defendant's counterclaim; and 2) the plaintiff had stated a claim for indemnity or contribution. PASNY's motion for reargument on this motion is presently pending before the Court and will be considered herein.

 The second motion decided in the Court's July Opinion was RTC's motion, made pursuant to Rule 13(g) of the Federal Rules of Civil Procedure, for leave to cross-claim against PASNY for contribution or indemnity. The Court denied RTC's motion on the ground that as a third-party defendant, PASNY was not a "co-party" of the defendants within the meaning of Rule 13(g). RTC subsequently moved to serve a third-party complaint on PASNY pursuant to Rule 14(a), and that motion will also be addressed in the instant Opinion.

 The final motion decided by the Court in July was plaintiff's motion for partial summary judgment, which was denied by the Court on the ground that there were genuine issues of material facts which had to be tried.

 FACTS

 On November 29, 1978, defendant RTC, the contractor, entered into a contract with PASNY for construction of certain mechanical and electrical work for the Additional Facilities at Indian Point Unit No. 3, located in Buchanan, New York. Defendant Federal Insurance Company ("FIC"), as surety, issued to PASNY, as obligee, a labor and materials bond conditioned for the payment due to all persons furnishing labor and materials to defendant RTC in the prosecution of construction of the project.

 On January 15, 1979, defendant RTC subcontracted to JCI the furnishing and installation of all control work required by the plans and specifications for the project. In the subcontract the subcontractor agreed to be bound by all applicable provisions of the prime contract between RTC and PASNY. The prime contract provided that, "Nothing contained in this contract shall create any contractual relation between any subcontractor and the Authority."

 In its complaint JC alleges that is performed and completed all of the work it was required to do under the subcontract and labor and materials bond, and was then due to receive the adjusted contract price of $766,158.00. JCI received $715,157.00 of that sum, which left a balance of $51,001.00. JCI alleges that defendant RTC has refused to pay it the money allegedly due and owing. JCI further alleges that defendant RTC breached the contract because it:

 (1) prevented JCI from performing its work on time;

 (2) hampered, interfered with, retarded, and impeded JCI's performance in completion of the work; and

 (3) failed to properly coordinate the work of the various subscontractors.

 JCI submits that because of RTC's actions, JCI ws prevented from performing its work in the normal and economical manner contemplated and otherwise possible, and that it was forced to proceed by haphazard and nonsequential procedures which increased its cost of operations and extended the time of performance. JCI requests $208,849.48 to cover the increased costs, ...


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