The opinion of the court was delivered by: CONNER
After our November 9, 1995, Opinion and Order denying cross-motions for summary judgment filed by Plaintiff General Insurance Company of America ("General") and the then-named defendants, K. Capolino Construction Corporation, K. Capolino Design and Renovation, Ltd., Kenneth L. Capolino and Patricia M. Capolino (collectively, "Capolino"),
General amended its complaint to add claims against the White Plains Housing Authority ("WPHA") (claims 4, 5 and 6). In its answer to the amended complaint, Capolino brought a cross claim for breach of contract against the WPHA (count 1) and impleaded WPHA Commissioners Myron C. Simon, Mary Burwell, Lawrence Salley, Robert Feder, Isador Fledshon, J., Michael Divney and WPHA Executive Director Anthony Tascione ("Additional Defendants"), alleging negligence (count 2). Answer to Cross-Claims of WPHA, Cross-Claims against WPHA and Claims Against Additional Defendants ("Pldg. 32").
Although the Additional Defendants have styled this motion as a motion to dismiss Capolino's third-party claims against them for failure to state a claim (count 2) under FED. R. CIV. P. 12(b)(6), because both sides have submitted affidavits and exhibits supplementing the pleadings, this Court converts these motions into a motion for summary judgment pursuant to FED. R. CIV. P. 56. In Re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985), cert. denied, sub nom, M.J.M. Exhibitors, Inc., 475 U.S. 1015, 89 L. Ed. 2d 310, 106 S. Ct. 1195 (1986).
The rather complicated facts underlying the central dispute in this case are set forth in detail in our November 9, 1995, Opinion and Order. For the purposes of this motion, we do not repeat those facts in detail, but simply summarize those events relevant to this motion and supplement them with later developments.
These events have inspired abundant litigation; this action is only one component of the numerous legal disputes among the WPHA, Capolino and General. In February 1994, Capolino filed an action in New York State court asserting claims against General for, inter alia, tortious interference with, and breach of, contract. The action also asserted claims against the WPHA for, inter alia, breach of contract, fraud and RICO violations. That action was removed to federal court and subsequently dismissed by Judge Brieant. In addition, an action is currently pending in New York State court between the WPHA and Capolino that encompasses their respective claims of breach of contract. The state action, with the exception of the defamation claims, is currently stayed.
On November 8, 1994, General filed this diversity action seeking to recover from Capolino, under the terms of its indemnity agreement with Capolino and under common law principles, approximately $ 132,000 in expenses that it has incurred in completing the projects and in bringing this action. Capolino filed counterclaims against General seeking a declaratory judgment that Capolino is not liable for the costs of completion. Capolino also seeks damages in the amount of the contract balances paid to General and indemnity for any judgment that the WPHA may be awarded against Capolino. Finally, Capolino has alleged damages of $ 250,000 from General's purported tortious interference in Capolino's contractual relationship with the WPHA. Both General and Capolino filed motions for summary judgment, arguing respectively that the other was in default.
We denied both motions, finding that there were material issues of fact as to whether the WPHA or Capolino was in default that precluded summary judgment.
After our denial of the cross-motions for summary judgment, in March of 1996 General amended its complaint and added claims in the alternative against the WPHA demanding that if the WPHA is found in default, it is required to make restitution for unjust enrichment to General for the expenses General incurred in completing the work under the contract (4th claim for relief), that the WPHA is liable to General for any damages awarded to other defendants on their counterclaims against General (5th claim), and for certain unpaid claims for change orders and extra work (6th claim). In its answer to the amended complaint, Capolino brought a cross claim for breach of contract against the WPHA (count 1) and impleaded the Additional Defendants, commissioners and employees of the WPHA, alleging, inter alia, negligent failure to administer and supervise the contracts and negligent misrepresentation (count 2). In its answer, the WPHA brought five cross-claims against Capolino, for, inter alia, declaratory judgment that it was not in default on either project, and restitution. The Additional Defendants now bring this motion, to dismiss Capolino's third-party claims against them for failure to state a claim, which we consider under Fed. R. Civ. P. 56.
Summary judgment is appropriate "only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact." Cable Science Corp. v. Rochdale Village, Inc., 920 F.2d 147, 151 (2d Cir. 1990). A genuine issue of material fact exists if "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).
A. Interpretation of Claim 2
In their brief in support of this motion, the WPHA and the Additional Defendants have argued that Capolino has merely attempted to "recycle" claim language alleging tortious interference with contract and possibly fraud that has already been rejected by both the state and federal courts. We note at the outset that count 2, self-titled "(Negligence)" does not attempt to state, and could not support, a claim for fraud. In addition, to the extent it could be possibly construed to state a claim for tortious interference with contractual relations against the Additional Defendants (and we are not at all certain that it could be so construed), we find that such a claim against Anthony Tascione is barred by Judge Natasi's March 6, 1996 Decision and Order dismissing this claim against Tascione on the merits. See Tascione Aff. Exh. 3 (Officer or director of corporation is not personally liable on theory of inducing breach of contract merely because while acting on behalf of the corporation he has made decisions and taken steps that resulted in the corporation's promise being broken). Additionally, we agree with the Additional Defendants' argument that since a tortious interference claim is barred against Tascione, it is also barred against the Commissioners, who were even further removed from the administration and oversight of the contracts at issue.
Thus we conclude that count 2 does not state a viable claim either for fraud or for tortious ...