UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
July 23, 1986
NIAGARA MOHAWK POWER CORPORATION, PLAINTIFF-APPELLANT,
BANKERS TRUST CO. OF ALBANY, N.A., U.S. DEPARTMENT OF HOUSING & URBAN DEVELOPMENT, MULBERRY APARTMENT HOUSING DEVELOPMENT FUND COMPANY, INC., DEFENDANTS-APPELLEES
Before: LUMBARD, CARDAMONE and WINTER, Circuit Judges.
ON PETITION FOR REHEARING
In its petition for rehearing, the United States Department of Housing and Urban Development ("HUD") requests that we clarify our opinion with regard to whether "all factual issues, including whether in fact HUD benefited from the provisions of utility services," remain open to trial on remand. Appellee's Petition for Rehearing at 8. Although we deny the petition, we believe that clarification herein is appropriate.
As stated in our opinion, Niagara Mohawk Power Corp. v. Bankers Trust Co., 791 F.2d 242, slip op. at 3540 (2d Cir. 1986), the briefs and arguments of the parties did not address the question of whether material issues of fact were in dispute. We therefore indicated that on remand Niagara Mohawk should renew its motion for summary judgment, and the district court could then determine what, if any, material facts are in dispute. We adhere to that ruling.
We add, however, that HUD's Petition for Rehearing appears to assume that the only benefit to HUD from Niagara Mohawk's provision of utility services to the Mulberry Project was the avoidance of foreclosure. It is true that we mentioned the foreclosure problem as a benefit in response to an argument proffered by HUD attempting to distinguish the decision in S. S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28 (2d Cir. 1979). However, we also specifically held that Silberblatt required us to pierce the veil between HUD and the Mulberry Project. Any benefit to the Mulberry Project. Any benefit to the Mulberry Project from the provision of utility services would, therefore, necessarily be a benefit to HUD.
The petition for rehearing is denied.
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