Bond, which by its terms incorporated the Agreement, was effective from December 2, 1988 through June 30, 1990. Id. P 4.
In order to determine if Gundolt had made all required payments, the Benefit Funds commenced an audit of their relevant books and records for the period July 1, 1988 through June 30, 1991. Donnellan Aff. of 10/19/93. P 11. The audit, which continued through July 17, 1991 and required 13 visits to Gundolt's offices, revealed that Gundolt had failed to make $ 242,933.90 in fringe benefit contributions to the Benefit Funds, of which $ 112,022.44 was covered by the Bond. Id.; Affidavit of Daniel A. Donnellan dated 12/15/93 ("Donnellan Aff. of 12/15/93") P 3. On November 8, 1991, the Benefit Funds notified Gundolt of its deficiency and demanded payment thereof, but payment was not forthcoming. Letter from Perkins to Treter of 11/8/91; Donnellan Aff. of 10/19/ 93 P 12.
On June 29, 1992, the Benefit Funds brought the instant action against Gundolt, seeking $ 242,933.90 in damages for their alleged violation of the Agreement, and against Liberty, seeking $ 50,000 in damages based upon their guarantee relating thereto. Thereafter, Gundolt filed for protection under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 1101 et seq. (1988), and on December 11, 1992, the entire action was transferred to the court's suspense docket. By order dated February 1, 1993, the action was restored to the court's trial calendar so that the Benefit Funds could proceed against Liberty. The parties filed cross-motions for summary judgment.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment may be granted if "there is no genuine issue as to any material fact." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The moving party must demonstrate the absence of any genuine issue of material fact. See Adickes v. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). It is well-established that a fact is material when its resolution would "affect the outcome of the suit under the governing law," and a dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Celotex, 477 U.S. 317, 322-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Moreover, in a contract dispute, summary judgment may be granted only where the language of the agreement is unambiguous, see Sayers v. Rochester Tel. Corp., 7 F.3d 1091, 1094 (2d Cir. 1993), which is a question for the court. See Metropolitan Life Ins. Co. v. RJR Nabisco, Inc., 906 F.2d 884, 889 (2d Cir. 1990).
As a preliminary matter, Liberty has objected to the Court's exercise of jurisdiction over this action.
In short, Liberty contends that, under the circumstances, the state court is the appropriate forum for this contract claim and that this Court should decline to exercise its supplemental jurisdiction.
By codifying the concepts of ancillary and pendent jurisdiction, see 28 U.S.C. § 1367(a),
Congress conferred broad "supplemental" subject matter jurisdiction upon the federal courts.
See Estate of Bruce v. City of Middletown, 781 F. Supp. 1013, 1015 (S.D.N.Y. 1992). Thus, even where an independent basis for federal jurisdiction is lacking, a court may exercise subject matter jurisdiction over state claims which "are part of the same case or controversy that includes a federal claim." Id. Furthermore, in such instances, "the court's exercise of pendent jurisdiction, although not automatic, would be a favored and normal course of action." Id. at 1016 (citing Promisel v. First Amer. Artificial Flowers, 943 F.2d 251, 254 (2d Cir. 1991), cert. denied, 117 L. Ed. 2d 110, 112 S. Ct. 939 (1992)). It follows that, where, as here the claims against Gundolt and Liberty derive from a common nucleus of operative facts, the Court should exercise its supplemental jurisdiction in this case, especially since there are no reasons set forth by Liberty that would justify deferring to the jurisdiction of the state court.
Turning to the merits, it is well-established that the "liability of a surety on a bond is predicated upon a breach of the conditions of the bond which describe the obligation." State v. Peerless Ins. Co., 135 A.D.2d 143, 524 N.Y.S.2d 877, 881 (3d Dept. 1988) (citation omitted). The Bond provides that unless Gundolt makes the payments required under the Agreement "for the period during which the bond remains in force . . . the [Bond] shall be . . . in full force and effect, until June 30, 1990." As noted above, Gundolt failed to make the required payments. In addition, the Bond provides "that no suit, action or proceeding shall be maintained against the Surety hereunder, unless the same be instituted within two years after the date of expiration or cancellation of this bond." Since this action was instituted prior to June 30, 1990, or within two years from the expiration of the Bond, this condition was also satisfied.
Liberty contends however, that pursuant to another provision set forth in the Bond, it unilaterally released itself from all liability to the Benefit Funds. According to Liberty, that provision enabled Liberty to "cancel its liability as to future assessments under the bond at any time by written notice to [Gundolt] and [the Benefit Funds] at least 30 days in advance of the date of cancellation." Accordingly, Liberty argues that its cancellation request, dated October 8, 1991, eliminated all liability to the Benefit Funds, once this request was sent, unless the Benefit Funds asserted their claims within that thirty day period. This argument is in turn predicated on interpretation of the word "assessments" to mean the assertion of any claim against the bond regardless of the time when the facts giving rise to such claims occurred.
That argument must be rejected for several reasons. First, that construction is belied by Liberty's own language set forth in the letter which it now claims released it from any liability under the bond, wherein Liberty stated in pertinent part:
We hereby request you to release Liberty Mutual Insurance Company, as Surety, from further liability under the captioned bond. We have enclosed a mail back copy of this request along with a self addressed envelope. Please respond below and return a copy of this form to the attention of the writer. If we do not hear from you we will assume that we are released from liability 30 days from the date of this letter.