at the same time receiving rental payments from the County of Hudson, and avoid paying interest on the funds to be advanced by Hudson City Savings to finance payment of the contract balance. IFIC is entitled to payment based on paragraph (c) of the Addendum, and plaintiff is without a legal right to withhold payment.
C. Motion to Strike Plaintiff's Damage Claims:
IFIC claims that plaintiff has failed to specify damages flowing from their alleged default. Although defendant impliedly acknowledges that plaintiff may generally recover damages for breach of contract, they argue that plaintiff has either failed to support his claim of damages, or is not entitled to certain types of damages as alleged in the complaint. Plaintiff states that he is in the process of compiling estimates to complete construction of the building, and to repair the "constantly escalating defects in the building." Plaintiff will allegedly be ready to offer such exact proof when it can be more fully determined.
At this stage in the litigation, plaintiff should be prepared to give an accounting of his damages. It has been nearly three years since the certificate of occupancy was issued, more than two years since he commenced this action, and almost seven months since discovery has closed. Plaintiff, at some point during this litigation, must provide an accounting of his damages; this point has long since passed. However, in the interest of justice, plaintiff must provide proof of his damages on or before September 30, 1994, or face dismissal of his claims for relief.
D. Plaintiff's Cross-Motion for Summary Judgment:
Plaintiff alleges that he is entitled to summary judgment granting him: (1) loss of rent caused by the default of IFIC from the contractual date the project was to be completed, November 30, 1990, to the date the building could be occupied, August 26, 1991; (2) loss of a lighting rebate credit from Niagara Mohawk caused by the failure of IFIC to complete the project on time; (3) legal fees incurred; (4) design professional fees incurred; and (5) an accounting of sales tax improperly collected and repayment thereof.
With regard to plaintiff's cross-motion, IFIC contends that since plaintiff has not moved for summary judgment on the issue of liability, material issues of fact remain as to whether the claimed damages resulted "from the contractor's default and the resulting actions or inactions on the part of the Surety." The court agrees. Plaintiff is not entitled to damages flowing from IFIC's alleged breach of contract until liability is determined. Plaintiff has not shown that IFIC's failure to complete the project on time was solely due to IFIC, nor has he moved this court for summary judgment on this issue of IFIC's liability.
Accordingly, it is ORDERED that
1. Defendant International Fidelity Insurance Company's motion for partial summary judgment is granted;
2. The Clerk of the Court is directed to enter final judgment pursuant to Fed. R. Civ. P. 54(b) in the sum of $ 407,488.00 in favor of defendant International Fidelity Insurance Company and against plaintiff Anthony R. Concra;
3. Defendant International Fidelity Insurance Company's motion to strike plaintiff's damage claims is denied without prejudice;
4. Plaintiff is directed to furnish, under oath, a complete and detailed accounting of his damages on or before September 30, 1994; and
5. Plaintiff's cross-motion for summary judgment is denied.
IT IS SO ORDERED.
David N. Hurd
U.S. Magistrate Judge
Dated: August 8, 1994
Utica, New York.