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July 7, 1998

PERINI CORPORATION, Plaintiff, against THE CITY OF NEW YORK, Defendant.

The opinion of the court was delivered by: SCHEINDLIN



 Plaintiff Perini Corporation ("Perini") filed a Complaint on June 24, 1997, asserting claims for multiple breaches of contract. On November 17, 1997, Perini moved for partial summary judgment on its third cause of action, which seeks an equitable adjustment for increased costs associated with the issuance of "change orders" on its contract with defendant City of New York ("City"). On January 6, 1998, defendant opposed Perini's motion and cross-moved for partial summary judgment on the same cause of action.

 I. Legal Standard for Summary Judgment

 A motion for summary judgment may be granted only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party has the burden of identifying evidence that demonstrates the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). Once such evidence is identified, the non-movant must "set forth specific facts showing that there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 248 (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968)). If there is any evidence in the record from which a reasonable inference could be drawn in favor of the non-movant on a material issue of fact, summary judgment is improper. See Hetchkop v. Woodlawn at Grassmere, Inc., 116 F.3d 28, 33 (2d Cir. 1997).

 In determining whether summary judgment should be granted, the court resolves all ambiguities and draws all reasonable inferences against the moving party. See D'Amico v. City of New York, 132 F.3d 145, 148 (2d Cir. 1998). However, the moving party is not required to affirmatively disprove unsupported assertions made by the non-movant, see Celotex, 477 U.S. at 323, and if the evidence presented by the non-movant is "merely colorable, or is not significantly probative, summary judgment may be granted." Scotto v. Almenas, 143 F.3d 105 (2d Cir. 1998) (quoting Liberty Lobby, 477 U.S. at 249-50). The court must also examine "the substantive law applicable in the underlying litigation since that law dictates which facts are material." Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir. 1993) (citing Anderson, 477 U.S. at 248).

 When both parties move for summary judgment, "a district court is not required to grant judgment as a matter of law for one side or the other. 'Rather, the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.'" Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993) (quoting Schwabenbauer v. Board of Educ., 667 F.2d 305, 314 (2d Cir. 1981). However, where the material facts relevant to the disposition of both plaintiff's and defendant's motions are largely undisputed, both motions may be decided simultaneously. See Turner v. General Motors Acceptance Corp., 980 F. Supp. 737, 739 (S.D.N.Y. 1997) (citing Hueblein for the proposition that cross-motions are evaluated independently, but deciding motions together where material facts are not in dispute).

 II. Factual Background

 The following facts are not disputed unless otherwise indicated. On or about December 21, 1993, Perini and the City entered into a binding construction contract, designated "Contract 20G," pursuant to which Perini agreed to upgrade and expand the structures and equipment at the Coney Island Water Pollution Plant (the "Project") for $ 40,985,000. See Plaintiff's Statement of Material Facts Pursuant to Local Civil Rule 56.1 ("Pl.'s 56.1") at PP 1-2; Defendant's Statement of Material Facts Pursuant to Local Civil Rule 56.1 ("Def.'s 56.1") at PP 1-2; Complaint at P 7.

 A. Contract Provisions

 An E.P.A. grant funding 55% of the Project required the incorporation of federal regulation 40 C.F.R. Chapter 1, Subchapter B, including 40 C.F.R. § 33.1030(3)(d) ("Changes Clause") and 40 C.F.R. § 33.1030(1) ("Supersession Clause"), into Contract 20G. See Affidavit of Joseph Terracciano, Director of Revenue and Claims for the Department of Environmental Protection of the City ("Terr. Aff.") at PP 5-7; Terr. Aff., Ex. D; Plaintiff's Memorandum of Law ("Pl.'s Mem.") at 1. The Changes Clause provides that an owner may by written order modify the contractor's work under the contract. If such a change "causes an increase or decrease in the contractor's cost . . ., an equitable adjustment shall be made and the contract modified in writing accordingly." In order "to assert a claim for an equitable adjustment under this clause, . . . [a contractor] must, within 30 days after receipt of a written change order . . ., submit to the owner a written statement setting forth the general nature and monetary extent of such claim." The Supersession Clause provides that the "clauses [under 40 C.F.R. § 33.1030, including the Changes Clause,] supersede any conflicting provisions of this subagreement."

 In addition to these federally mandated clauses, Contract 20G includes standard contract provisions that provide for the issuance of contract changes (Article 25), determination of methods of payment (Article 26), and notice and documentation of claims (Articles 27 and 54). Article 25, "Contract Changes," states: "The Contractor shall be entitled to a price adjustment for extra work performed pursuant to a written change order. . . Any Construction Contract increase . . . that cumulatively exceed[s] the greater of 10% or $ 50,000 shall be approved, in writing, by the Office of Construction." City's Cross-Motion for Partial Summary Judgment ("City's C-M"), Ex. A at p. 44. The computation of compensation for extra work performed pursuant to change orders issued by the City is determined under Article 26, "Methods of Payment for Extra Work," by either applicable unit prices, a "cost plus a percentage" method, or a negotiated payment. Id. at pp. 45-46. Article 27, "Disputed Work, Determination or Order," sets forth notice and documentation requirements:

If the Contractor shall also claim to be sustaining damages by reason of any act or omission of the City or its agents, [it] shall within five (5) days after the sustaining of such damage, notify the Commissioner in writing and within (30) days thereafter . . . submit to the Commissioner verified detailed statements of the damages sustained together with documentary evidence of such damages. On failure of the Contractor to fully comply with the foregoing provisions, such claims shall be deemed waived and no right to recover on such claims shall exist.

 Id. at p. 46. Article 54 further mandates strict compliance with notice provisions: "No claims against the City for damages for breach of Contract or compensation for extra work shall be made or asserted in any action or proceeding at law or in equity, unless the Contractor shall have strictly complied with all requirements relating to the giving of notice and of information with respect to such claims as have been herein provided." Id. at p. 73.

 B. Change Orders

 The City issued change orders (1) modifying the replacement of six existing 48-inch valves with new 54-inch valves, (2) modifying the rehabilitation of the existing main sewer pump motors, and (3) following the scheduled completion date of September 13, 1996. See Pl.'s 56.1 at PP 6-15, 26; Def.'s 56.1 at PP 6-15, 26. The change orders on the valve and motor work addressed problems encountered in Perini's performance of the contract, ...

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