1.3 of the Subcontract Agreement provides that "the Subcontractor is bound to the Contractor by the Contract Documents and shall assume toward the contractor, with respect to Subcontractor's performance, the obligations and responsibilities which the Contractor assumes toward the Owner." Further, § 2.1 provides that "the Contractor employs the Subcontractor as an independent Contractor, to perform the part of the Work which the Contractor has contracted with the owner to provide on the Project as set forth in Exhibit A 'Scope of Work.'" Finally, paragraph one of the Scope of Work section provides that "the Subcontractor (L.K. Comstock & Co., Inc.) shall furnish all labor, material, supervision, engineering, equipment and incidentals required for the complete removal and/or installation of the items covered by this agreement, unless specifically modified herein." Defendants argue that, taken together, these provisions required Comstock to complete the entire VMSS.
A. Motions for Summary Judgment
A motion for summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir. 1991); American Express Travel Related Services Co. v. Accu-Weather, Inc., 849 F. Supp. 233, 238 (S.D.N.Y. 1994). In contract disputes, summary judgment is appropriate only if the language of the contract is "wholly unambiguous." Mellon Bank, N.A. v. United Bank Corp., 31 F.3d 113, 115 (2d Cir. 1994) (quoting Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)); see also Williams & Sons Erectors v. South Carolina Steel, 983 F.2d 1176, 1183 (2d Cir. 1993) ("Summary judgment may be granted when the provisions of a contract convey a definite and precise meaning, absent any ambiguity."). Whether a contract is unambiguous is a matter of law to be decided by the court. Mellon Bank, 31 F.3d at 115; Seiden Assoc., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 429 (2d Cir. 1992). Courts have defined an ambiguous terms as "one about which reasonable minds could differ." See, e.g., Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 573 (2d Cir. 1993).
If a contract is ambiguous, summary judgment may not be appropriate. "When the provisions of a contract are susceptible to conflicting constructions and when there is relevant extrinsic evidence of the parties' actual intent, the meaning of the contract is an issue of fact barring summary judgment." Mellon Bank, 31 F.3d at 116; American Express, 849 F. Supp. at 238. "Resolving an ambiguous term in a written contract through extrinsic evidence remains squarely within the province of the trier of fact [and thus] summary judgment in such circumstances is inappropriate." Consarc Corp. 996 F.2d at 574.
Based on these well-established principles, I cannot grant either side summary judgment in this action. The Subcontract Agreement cannot be described as "wholly unambiguous." For instance, the Scope of Work section of the Subcontract Agreement Provides that Comstock must complete all work covered by the Subcontract Agreement except that which is specifically excluded. Yet, the Subcontract Agreement contains an inclusion that specifically applies to the VMSS. Similarly, it is unclear whether the parties intended the draft project schedule to be the "mutually agreeable Project Schedule" that is referred to in the Subcontract Agreement.
These questions and others can be answered only by examining extrinsic evidence. Moreover, as required under the law in this circuit, it appears that there is relevant extrinsic evidence of the parties' actual intent. Mellon Bank, 31 F.3d at 116; Consarc Corp. 996 F.2d at 573. Accordingly, it would be inappropriate to grant summary judgment.
B. Motion to Dismiss
Perini has moved to dismiss the claims against it, arguing that it is not liable to Comstock until the Joint Venture becomes insolvent. On a motion to dismiss, I must accept Comstock's allegations as true and construe those allegations in the light most favorable to Comstock. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). The claims against Perini may be dismissed only if Comstock can prove no set of facts that would entitle it to relief. Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir. 1984), cert. denied, 470 U.S. 1084, 85 L. Ed. 2d 144, 105 S. Ct. 1845 (1985).
Under this well settled standard, Perini's motion must be rejected. Viewing the facts in the light most favorable to Comstock, the actions giving rise to liability may predate the formation of the Joint Venture. Because Perini may have acted individually and not on behalf of the Joint Venture, it may be liable for a breach of the Sublease Agreement. N.Y. Partnership Law § 26(a)(2) (McKinney Supp. 1995). Furthermore, Comstock has asserted both contract and tort claims against Perini. The tort claims against Perini are proper, even if at all times Perini was acting as partner on behalf of the Joint Venture. Ryan v. Brophy, 755 F. Supp. 595, 597 (S.D.N.Y. 1991). Accordingly, Perini's motion to dismiss is denied.
For the reasons set forth above, the parties' cross-motions for summary judgment and Perini's motion to dismiss are denied. Counsel for the parties are to appear for a pre-trial conference on November 21, 1995 at 10:00 a.m. in Courtroom 11A of the Courthouse at 500 Pearl Street.
Dated: New York, New York
November 7, 1995
United States District Judge
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