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CONCRA v. INTERNATIONAL FID. INS. CO.

August 8, 1994

ANTHONY R. CONCRA, Plaintiff,
v.
INTERNATIONAL FIDELITY INSURANCE COMPANY, Defendant, and CRAWFORD & ASSOCIATES; PATRICK J. PRENDERGAST, P.E.; and HUDSON CITY SAVINGS, Joined Defendants.


Hurd


The opinion of the court was delivered by: DAVID N. HURD

United States Magistrate Judge

 MEMORANDUM-DECISION and ORDER

 I. INTRODUCTION.

 Defendant International Fidelity Insurance Company ("IFIC") moves for partial summary judgment on its counterclaim against plaintiff for the undisbursed balance of the subject construction contract, and to strike plaintiff's damage claims as being unsupported by objective evidence. Plaintiff, Anthony R. Concra, cross-moves for an order awarding him loss of rental income and other alleged monetary losses caused by IFIC's alleged contract default.

 II. FACTS.

 This action arises out of a performance bond issued by IFIC as surety; Capitol Valley Contractors, Inc. ("Capitol Valley") as principal; and plaintiff as an obligee. In November 1989, plaintiff contracted with Capitol Valley to construct a two story building in Hudson, New York. Plaintiff, who leases property from the City of Hudson Industrial Development Agency, received his funding for the project through defendant Hudson City Savings Bank. On or around November 2, 1989, IFIC issued performance and payment bonds on behalf of Capitol Valley to assure Capitol Valley's performance of the construction contract. Pursuant to an agreement dated February 15, 1990, between plaintiff and Morris Associates, the predecessor-in-interest to defendant Crawford & Associates, Morris agreed to act as project engineer in connection with the construction project.

 Capitol Valley commenced construction in March 1990, but defaulted on the project's construction in December 1990. *fn1" By agreement entitled Surety Takeover Agreement dated May 9, 1991, IFIC undertook the completion of the construction contract. IFIC then retained Sam Greco Construction to complete the construction, and upon certification by the project engineer, the project was allegedly completed on August 15, 1991. Plaintiff currently sublets occupancy of the building to the Columbia County Department of Social Services. On December 2, 1991, IFIC requested payment in full. Plaintiff refused payment because there were several mechanic's liens against the property. IFIC removed all liens against the property by the end of September 1992. No payment on the contract balance has been paid.

 III. SUMMARY JUDGMENT.

 A motion for summary judgment may be granted only when the moving party carries its burden of showing the absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell, Partnership v. Medfit Int'l, Inc., 982 F.2d 686, 689 (1st Cir. 1993); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) (citations omitted). "Ambiguities or inferences to be drawn from the facts must be viewed in a light most favorable to the party opposing the summary judgment motion." Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983). In other words, a motion for summary judgment pursuant to Fed. R. Civ. P. 56 shall be granted only "when the pleadings, evidence obtained through discovery, and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law." Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991). Therefore, "summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, 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).

 IV. DISCUSSION.

 A. IFIC'S Claim of Entitlement to the Contract Balance:

 IFIC claims that it is entitled to the balance of the adjusted contract balance, that is, $ 507,488.00 less $ 100,000 as retainage for any alleged defects pursuant to the Addendum to the Takeover Agreement. The Addendum provides in relevant part:

 
(a) In sixty (60) days Concra shall pay directly to [IFIC] an amount equal to eighty percent (80%) of the value of work completed after the December 25, 1990 requisition and approved by Morris Associates or their successor with a cap on ...

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