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September 19, 2001


The opinion of the court was delivered by: William C. Conner, Senior District Judge.


Plaintiffs Glenview Construction, Inc. ("Glenview"), a general contracting construction company, and its owners and officers, Joseph ("J.Afonso") and Maria Afonso ("the Afonsos"), individually (collectively "plaintiffs"), bring the instant action against defendants George P. Bucci, Jr., individually and as supervisor of the Town of Newburgh (the "Town"), Robert Petrillo, individually and as councilperson of the Town, Nancy Lacolla, individually and as councilperson of the Town, the Town Board (the "Board") (collectively the "Town defendants"), J. Robert Folchetti & Associates, LLC ("JRFA") and John E. Folchetti, individually (collectively "the Folchetti defendants"). Plaintiffs assert a claim under 42 U.S.C. § 1983 for unlawful retaliation against the Town and Folchetti defendants and a claim for breach of contract against the Town defendants.*fn1

Plaintiffs allege that defendants violated their constitutional civil rights by unlawfully retaliating against them for threatening legal action over a disputed municipal construction contract ultimately granted to plaintiffs by the Board. Defendants now move for summary judgment pursuant to FED. R. Civ. P. 56: 1) dismissing the § 1983 claim brought against all defendants; 2) dismissing all claims brought against Bucci, Petrillo and Lacolla individually; 3) dismissing all claims brought by the Afonsos individually; and 4) remanding the breach of contract claim to Orange County Supreme Court for trial. For the reasons that follow, the Town defendants' motion is granted in part and denied in part, and the Folchetti defendants' motion is granted.


In late 1996, the Town contracted with JRFA, a construction engineering firm, to serve as the project engineer on a water main installation project for two dead-end streets in Newburgh, New York, namely Stanton Road and Dix Avenue (the "Stanton Road project"). Stanton Road required approximately 600 feet of an 8-inch ductile iron water main extension, Dix Avenue a similar extension of approximately 500 feet. As project engineer, JRFA was responsible for performing project design and administration services, including reviewing the contractors' bids on the project and making a recommendation to the Board for the award of the contract. Pursuant to New York General Municipal Law § 103, JRFA was required to recommend the "lowest responsible bidder."

Folchetti and Osborne then met with Town Supervisor Bucci and Town Attorney Richard Drake to discuss JRFA's recommendation report. Osborne believes he showed the draft report to Bucci and Drake, but he is not absolutely certain. (Osborne Dep. at 34, 36.) Bucci does not recall being given any documents (Bucci Dep. at 16, 67), and Drake claims that he did not see the report at that meeting. (Drake Dep. at 14-15.) Osborne's and Folchetti's testimony disputes these assertions. (Compare Drake Dep. at 16-19, 29-30, 57-58 with Osborne Dep. at 23 and Folchetti Dep. at 21-25.)

The four men then discussed the legal risks of not awarding the contract to Glenview as the lowest bidder. (Folchetti Dep. at 80-81; Osborne Dep. at 36-37.) They also discussed Glenview's lack of experience installing ductile iron pipe and the potential impacts that would have on the project. Plaintiffs claim Folchetti understood that, by the end of the meeting, the men had reached a "consensus" to award the contract to Glenview (see Folchetti Dep. at 22-23), but Drake testified that there was no such consensus. (Drake Dep. at 24.) After the September 4 meetings, Folchetti faxed a "final" report to Osborne that recommended selecting Glenview as the "lowest responsible bidder." (Folchetti Dep. at 23-24; Watkins Aff., Ex. 2.)

Plaintiffs claim that, according to Osborne, Drake and Bucci, the Board awarded the Stanton Road project to Alexandra at the September 6, 1997 executive session despite JRFA's report. (Pls. Mem. Opp. Summ. J. at 2-3 (citing Osborne Dep. at 44-45; Watkins Aff., Ex. 7).) However, Drake claims that JRFA's report was not discussed at the September 6 executive session. (Drake Dep. at 25, 29.) Osborne believes he gave the report to the Board at this session and that its recommendation of Glenview was the focal point of discussion, especially because the Board was concerned about potential construction cost overruns. (Osborne Dep. at 41-42, 46, 51-52.) He states that due to this concern, the Board told him to direct JRFA to create a second report recommending Alexandra as the "lowest responsible bidder" (id. at 57-58), and that this was done to protect the Town in the event that litigation resulted from awarding the contract to Alexandra, the third lowest bidder. (Id. at 66.) Drake disputes this assertion, stating that no such directive was issued, and Bucci does not recall one either. (Drake Dep. at 32, 54-55; Bucci Dep. at 41-42.)

After the September 6 executive session, Osborne directed JRFA to revise its report to recommend Alexandra, and JRFA complied. According to plaintiffs, on September 10, 1997, purportedly "based" on JRFA's second recommendation, the Board voted to award the contract to Alexandra. (See Osborne Dep. at 58; Watkins Aff., Ex. 6.) On September 11, the Town notified Alexandra that it was awarded the contract, and plaintiffs allege that Alexandra "immediately commenced preliminary work on the project." (Pls. Mem. Opp. Summ. J. at 4.) However, it is unclear whether Alexandra performed any preliminary work. (See Osborne Dep. at 73-74.)

Upon learning that the Town had awarded the contract to Alexandra, Fred Maute, Glenview's then attorney, inquired why Alexandra was awarded the Stanton Road project instead of Glenview. Plaintiffs claim Drake responded that "Alexandra got the contract `based on the recommendation of the design engineer [Folchetti],'" but that "[a]s Osborne acknowledged during his deposition, this assertion was not true." (Pls. Mem. Opp. Summ. J. at 4 (citing Watkins Aff., Exs. 9, 12; Osborne Dep. at 58).) In fact, plaintiffs glean Drake's "assertion" from a note JRFA's secretary wrote memorializing a conversation with Osborne about the matter, wherein Osborne relayed his own impression of Drake's "opinion." (See Watkins Aff., Ex. 9.) Drake testifies that he told Maute to "do what you have to do" vis-à-vis the threatened suit because he believed the Town would prevail if Glenview brought an Article 78 proceeding. (Drake Dep. at 5556.)

On September 17, 1997, Glenview filed a Freedom of Information Act ("FOIA") request for JRFA's September 4 report. Plaintiffs allege that the Town responded by giving Glenview only a copy of JRFA's September 11 report. (See J. Afonso Aff. ¶ 2.) Drake's testimony suggests, though, that only the version that was produced was kept in the Town's files, and that any other documents not initially produced were withheld inadvertently. (Drake Dep. at 59-66, 85-86.) Additionally, based on Osborne's testimony that the Board told him to direct JRFA to change its recommendation to protect the Town in the event that litigation resulted from awarding the contract to Alexandra (see Osborne Dep. at 66), plus the Town's failure to produce JRFA's initial report, plaintiffs allege that we "may reasonably infer that the Town threw away or otherwise destroyed its copies of the first [JRFA] report on or about September 18, 1997." (Pls. Mem. Opp. Summ. J. at 4.)

On September 18, 1997, Drake called Folchetti, told him about Maute's FOIA letter, and expressed his opinion that Glenview and Noble might sue the Town. Drake also told Folchetti that he did not know JRFA had submitted an initial report recommending Glenview. According to Folchetti, Drake seemed "very distressed" over the turn of events. Drake admits he thought that JRFA's initial recommendation of Glenview "looked bad" in connection with Glenview's potential suit against the Town. (Drake Dep. at 55-60; Folchetti Dep. at 91-97; Watkins Aff., Ex. 13.)

On September 24, 1997, Maute wrote Bucci (with a copy to Folchetti) that Glenview intended to file an Article 78 proceeding to have the Alexandra award set aside. That same day, in an executive session, the Board rescinded the Alexandra contract and awarded it to Glenview. The Board's minutes reflect that Drake advised the Board that "Alexandra . . . is not, under New York law, the lowest responsible bidder." (Watkins Aff., Ex. 14.) Drake testifies that this was not his actual opinion and that he had advised the Board that, although it could legally have upheld the award to Alexandra, defending against Glenview's Article 78 suit would have been too costly. (Drake Dep. at 67-68.) On October 7, 1997, the Town awarded Alexandra a separate water main extension project (the "Country Meadow project") that had an almost identical construction budget and project completion schedule as the Stanton Road project.

Plaintiffs allege that "defendants immediately delayed the Stanton Road project by approximately four weeks, repeatedly rejecting Glenview's submittal documents as nonconforming," even though "[t]he Glenview submittal documents that defendants ultimately approved were essentially identical to those which they had repeatedly rejected." (Pls. Mem. Opp. Summ. J. at 6 (citing J. Afonso Aff., Ex. 1; Folchetti Dep. at. 60).) Folchetti states that although he felt plaintiffs' documents were never up to par, he "started to simply approve [them] with less regard to the format in order to get the project on the road." (Folchetti Dep. at 60.) J. Afonso acknowledges that JRFA had discretion as project engineer to determine whether the submittal documents conformed to the contract specifics. (J. Afonso Dep. at 11.)*fn2 He also admits that Glenview's submittal documents did not conform to the letter with the contract. (Id. at 16-18.)

Plaintiffs also claim that the Country Meadow project submittal provisions were identical to those of the Stanton Road project (see Watkins Aff., Exs. 17, 18), and that although Alexandra's submittal documents on that project were less complete than Glenview's rejected submittal documents on the Stanton Road project (see J. Afonso Aff., Exs. 1, 2), the Town approved Alexandra's documents without delay. However, the Country Meadow project engineer was Valdina Consulting Engineers, not JRFA. (Watkins Aff., Ex. 19.)

Plaintiffs further allege that they were treated differently from Alexandra regarding the use of plating, that is covering the excavations temporarily with steel plates, rather than backfilling them. The Stanton Road contract contains provisions allowing plating (see Watkins Aff., Ex. 20), but the Town told plaintiffs that it had a strict policy prohibiting plating. (See Osborne Dep. at 85.) The Town thus required plaintiffs to backfill any open trench at the end of each working day. J. Afonso admits that Folchetti and Darryl Benedict, the Town Highway Superintendent in charge of the Stanton Road project, told him at the pre-construction meeting that he could not use plating. (J. Afonso Dep. at 35-36.) Nonetheless, the Town allowed Alexandra to use plating on the Country Meadow project, which was ongoing contemporaneously with the Stanton Road project. (Watkins Aff., Ex. 21; Osborne Dep. at 92-93.)

In April 1998, after plaintiffs assert that they had nearly completed the Stanton Road project, the Town asserted a claim for liquidated damages against Glenview for "failure to complete the work on or before the scheduled completion date." (Watkins Aff., Ex. 22.) Folchetti testifies that he was "surprised" by the Town's action and that the Town deviated from its normal practice by not consulting with JRFA, the project engineer, before asserting liquidated damages. (Folchetti Dep. at 129-30.) Plaintiffs also allege that the Town deviated from its own procedure, claiming that Bucci and Drake "unilaterally assessed liquidated damages against Glenview without any Town Board vote on the matter." (Pls. Mem. Opp. Summ. J. at 7 (citing Osborne Dep. at 106; Drake Dep. at 75).) Drake maintains that the Board was aware of the decision, and approved it by "just a discussion and a consensus." (Drake Dep. at 75.)

Plaintiffs also allege that they substantially completed the Stanton Road project as of April 17, 1998, when they requested a Certificate of Substantial Completion from the Town. (J. Afonso Aff., Exs. 4, 5.) They assert that JRFA admitted as much, stating in its moving papers that "Glenview's work began on November 20, 1997 and the job was completed on or about April 17, 1998." (Pls. Mem. Opp. Summ. J. at 8 (emphasis in original) (citing Folchetti Defs. Rule 56.1 Stmt. No. 12).) Plaintiffs claim that at the Town's direction, JRFA did not issue a Certificate of Substantial Completion until May 27, 1998, which drove up the liquidated damages against Glenview and prevented it from being paid for its work. (Id. (citing Watkins Aff., Ex. 25).) Folchetti states that Glenview had not submitted all the proper documentation required by the contract to declare substantial completion (Folchetti Dep. at 120-22), and that he had no contact with anyone from the Town regarding substantial completion, which Osborne confirms. (Folchetti Dep. at 129-30; Osborne Dep. at 118-19.) Finally, plaintiffs allege that the Town issued Alexandra a Certificate of Substantial Completion several months before Alexandra actually completed the Country Meadow project. (Pls. Mem. Opp. Summ. J. at 8 (citing Watkins Aff., Exs. 26, 27).)


I. Summary Judgment ...

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