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MAGUIRE CO. v. HERBERT CONSTR. CO.

October 8, 1996

MAGUIRE COMPANY, INC., Counterclaim Plaintiff, against HERBERT CONSTRUCTION COMPANY, INC., Counterclaim Defendants.


The opinion of the court was delivered by: CARTER

 Carter, DISTRICT JUDGE

 This is a counterclaim action for damages resulting from breach of a subcontract concerning a construction project ("the Roof Modification Project") which involved the installation of two new cooling towers and a piping system at certain floors of the American Express Tower at 3 World Financial Center in Manhattan. Counterclaim plaintiff is J.P. Maguire Company, Inc. ("Maguire") and the counterclaim defendant is Herbert Construction Company ("Herbert"). Presently before the court is Herbert's motion for judgment as a matter of law, pursuant to Rule 50, F.R.Civ.P., or in the alternative, for a new trial pursuant to Rule 59, F.R.Civ.P.

 I.

 Herbert was the general contractor for the Roof Modification Project and Maguire was Herbert's mechanical subcontractor pursuant to a written subcontract entered into in January, 1993. The subcontract was incorporated by reference into a purchase order executed by Maguire and Herbert and was dated August, 1992. (Admitted Facts, Joint Pre-Trial Order at 29). Maguire began work in or about September, 1992. Part of the work Maguire was to have performed was to join 12-inch copper pipes to 12-inch cast bronze fittings by a process known as brazing. Each bronze fitting is used to essentially join together two ends of copper pipe that have been inserted into the fitting. Inside of each fitting are metal rings that when heat from a torch is applied to them, i.e., brazed, the metal melts and spreads to fill the space between the fitting and the pipe end. The metal then solidifies so as to completely seal and join the pipe ends to the fitting. The specifications for the brazing of the fittings specified that Maguire use either BCup-5 or Bag-3 braze metal as the metal material to seal the fitting and pipes. Maguire used Bcup-5. (Id. at 30).

 In mid-June 1993, Maguire began testing the piping system it had installed. Leaks were discovered on some of the 12-inch fittings that Maguire had brazed to the pipes. At Herbert's request and direction, Maguire attempted to repair several fittings in place, and began installation of replacement fittings and pipe in areas where fittings had to be cut out of the system because the repairs were unsuccessful. (Id. at 31-32).

 The case came for jury trial on July 15, 1996 and lasted through July 18, 1996. The jury found for Maguire and awarded it $ 250,000 in damages.

 Herbert now argues that the court should grant a judgment in its favor as a matter of law because Maguire failed to present evidence to satisfy its burden of proof and failed to present evidence to support the verdict. In the alternative, Herbert argues for a new trial on the grounds that the verdict was against the weight of the evidence.

 II.

 A motion for judgment as a matter of law, pursuant to Rule 50(b), F.R.Civ.P., "will be granted only if (1) there is a complete absence of probative evidence to support the verdict for the non-movant[,] or (2) the evidence is so strongly or overwhelmingly in favor of the movant that reasonable and fair minded [jurors] in the exercise of impartial judgment could not arrive at a verdict against [the movant]." Armstrong v. Commerce Tankers Corp., 423 F.2d 957, 959) (2d Cir.), cert. denied, 400 U.S. 833, 27 L. Ed. 2d 65, 91 S. Ct. 67 (1970). The district court is required to consider the evidence in the light most favorable to the party against whom the motion was made and to give that party the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence. Concerned Area Residents for the Environment v. Southview Farm, 34 F.3d 114, 120 (2d Cir. 1994), cert. denied, U.S. , 131 L. Ed. 2d 721, 115 S. Ct. 1793 (1995). The court "'cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury.'" Id. (citation omitted).

 A new trial motion may be granted if "the jury has reached a seriously erroneous result, or . . . the verdict is a 'miscarriage of justice' i.e. . . . the verdict is against the great weight of the evidence." Mallis v. Bankers Trust Co., 717 F.2d 683, 691 (2d Cir. 1983). In considering such a motion, the court may weigh the evidence and need not view it in the light most favorable to the non-moving party. Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir. 1978). Such a motion will not be granted, however, "unless it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done." Metromedia Co. v. Fugazy, 753 F. Supp. 93, 96 (S.D.N.Y. 1990) (Carter, J.), aff'd, 983 F.2d 350 (2d Cir. 1992), cert. denied, 508 U.S. 952, 124 L. Ed. 2d 662, 113 S. Ct. 2445 (1993) (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure § 2803 at 32 (1973)). A verdict may not be set aside merely because the judge would have reached a different result as the finder of fact, but only if "it is quite clear that the jury has reached a seriously erroneous result." Bevevino, 574 F.2d at 684 (quoting 6A Moore's Federal Practice P 59.08[5] at 59-160 to 59-161 (1973)). The moving party has the burden to prove that it is entitled to a new trial.

 III.

 At trial, Maguire alleged that Herbert had breached the subcontract by providing defective specifications--the cause of the leaking fittings--which prevented Maguire from completing performance. Maguire contended that it was damaged by Herbert's breach in the amount of $ 250,000, the amount allegedly promised to Maguire for performing the repair/replacement work, or at the very least, in the amount of $ 30,000 ...


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