The opinion of the court was delivered by: DENIS R. HURLEY
Plaintiff International Paving Systems, Inc. ("IPS") commenced this action against Van-Tulco, Inc. ("Van-Tulco") and the additional defendants, Van-Tulco's sureties on the payment bond which is the subject of this action. IPS is seeking $ 125,816.07 from Van-Tulco or its sureties for latex modified concrete ("LMC") that IPS supplied to AVA Construction, Inc. ("AVA"), Van-Tulco's subcontractor on a project (the "Project") to build bus ramps for the New York City Department of Transportation ("NYCDOT"). NYCDOT is withholding payment of an outstanding contract balance on its general contract with Van-Tulco (the "General Contract") pending a judicial determination as to the cause of the cracking and delamination of the LMC at the Project.
Also before the Court is Van-Tulco's cross-motion to consolidate this action with a related matter pending before this Court, captioned Donald J. Crecca, as trustee in bankruptcy for AVA Construction, Inc. v. Van-Tulco, Inc. et al., 90 Civ. 0531 (DRH) (the "Related Action"), on the ground that both actions involve common questions of law and fact. The Court grants this motion for the reasons stated below.
In June of 1983, the City of New York (the "City") entered into a contract with Berger, Lehman Associates, P.C., Consulting Engineers, ("BLA") pursuant to which BLA was to design and plan the work for a construction project involving the renovation of the bus ramps at the St. George Ferry Terminal in Staten Island, New York. A few weeks later, the City, acting through the NYCDOT, entered into the General Contract with Van-Tulco for work on the Project.
As part of the General Contract, Van-Tulco furnished a labor and material payment bond (the "Bond") on which Van-Tulco acted as principal and defendants Reliance Insurance Company of New York, Reliance Insurance Company, American Reinsurance Company, North American Reinsurance Company and Employers Reinsurance Corporation acted as joint and co-sureties. Pursuant to the Bond, Van Tulco and the joint and co-sureties are jointly and severally liable for the payment of all entities furnishing materials for or performing labor in the work provided for in the General Contract.
As part of its efforts to comply with the General Contract, Van-Tulco entered into a subcontract with AVA Construction, Inc. ("AVA") whereby AVA was to perform that portion of the work on the project involving the installation of the LMC. AVA entered into an agreement with IPS, as sub-subcontractor, pursuant to which IPS was to supply the LMC for the Project.
The placement of the LMC overlay at the Project took place in two phases: ramps five and six were poured in late May and June of 1986, and ramps three and four were poured in November of 1986. Subsequently, cracking and delamination was discovered on some portion of the ramps.
As a result, the city is currently withholding payment of an outstanding contract balance to Van-Tulco pending a judicial determination of, inter alia, the cause of the cracking and delamination.
B. The Actions on the Contracts
On or about April 7, 1988, IPS commenced this action against Van-Tulco, as principal, and the additional defendants, Van-Tulco's sureties, to recover pursuant to the Bond. IPS is seeking from Van-Tulco or its sureties $ 125,816.07 which AVA failed to pay IPS pursuant to their sub-subcontract for the LMC.
In another action before this Court, Donald J. Crecca, as trustee in bankruptcy for AVA, is suing Van-Tulco for $ 238,099.83 due on its subcontract for the LMC supplied and installed at the Project. In that action, Van-Tulco has asserted a counterclaim and offset against AVA for at least $ 813,244.50 on the ground that the cracking and delamination of the LMC was due to defects in the workmanship and materials furnished by AVA. The sum represents the amount which the NYCDOT claims is necessary to remedy the defects in the LMC. Van-Tulco also brought a third-party action against the City of New York asserting that Van-Tulco installed the LMC in accordance with the plans and specifications for the Project but that those plans and specifications were defective. Van-Tulco thus seeks to recover the outstanding balance due under the General Contract. The City, in turn, brought a fourth-party action against BLA asserting that if the plans and specifications were defective, it is BLA's responsibility. Against this procedural back-drop, the Court turns to a discussion of the motions before it.
I. Motion for Summary ...