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MACQUESTEN GENERAL CONTRACTING, INC. v. HCE

March 22, 2002

MACQUESTEN GENERAL CONTRACTING, INC., PLAINTIFF,
V.
HCE, INC. AND JOHN J. HILDRETH, DEFENDANTS. HCE, INC. AND JOHN J. HILDRETH, THIRD-PARTY PLAINTIFFS, V. PALMER COURT ASSOCIATES, L.L.C., RELLA FOGLIANO, SABINO FOGLIANO AND AMERICAN MOTORISTS INSURANCE COMPANY, THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: VICTOR Marrero, U.S. District Judge.

ORDER

For the reasons set forth in the "Statement of the Court," attached and incorporated herein, issued on the record at the March 22, 2002 status conference in this matter, it is hereby

ORDERED that defendant HCE Inc.'s motion for partial summary judgment [Doc. No. 42] as to plaintiff's second claim is GRANTED; and it is further

ORDERED that plaintiff's motion for partial summary judgment [Doc. No. 50] on the breach of contract claims against Rella and Sabino Fogliano is GRANTED, and the second and third claims shall be dismissed as against Rella and Sabino Fogliano; and it is finally

ORDERED that plaintiff's motion for partial summary judgment on defendant's counterclaims of breach of contract, lien enforcement, conversion and interference with economic and business relations is DENIED.

SO ORDERED.

Statement of the Court: March 22, 2002

MacQuesten General Contracting, Inc. v. HCE, Inc., et al.

99 Civ. 8598 (VM)

This proceeding is in the matter of MacQuesten General Contracting, Inc. v. HCE, Inc., et al., Docket No. 99 Civ. 8598. The Court called this conference to issue its ruling on the parties' cross-motions for partial summary judgment. The filing of plaintiff MacQuesten's complaint was followed by the filing of counterclaims and third party practice by defendant HCE. The cross-motions for partial summary judgment pertain to the underlying complaint, the counterclaims and the third-party claims.

At the outset, the Court notes that although the parties have come forward with seemingly complex cross-motions with voluminous submissions, most of the parties' contentions merely underscore that there remain contested issues of material fact about which the parties' have widely divergent views. Neither side makes a particularly convincing case to support its version of the events at issue, but at the same time, both parties have marshaled just enough, by way of sworn affidavits and documentary submissions, to raise several triable issues of fact.

The parties in this matter appear to be unable to agree on much of anything; nevertheless, the Court highlights two critical issues, among many, to illustrate the parties' positions on their respective cross-motions. According to HCE, the manner in which MacQuesten made periodic monthly payments under the three subcontracts involved the use of two supporting documents: HCE's invoices and the "progress payment applications," required by Article 11 of the sub-contract agreements. (Declaration of John J. Hildreth, sworn to June 13, 2001 ("Hildreth Dec."), ¶ 8-11.) In a sworn affidavit, the President of HCE, John J. Hildreth, avers that the HCE invoices reflected the true amount of the work completed by HCE to date and that the amount of the progress payment applications merely represented amounts that MacQuesten was able to pay at that time. (Id. at ¶ 9.) Hildreth further contends that he agreed with representatives of MacQuesten that the true amount of work completed, as reflected in its invoices, would be paid in full in future installments. (Id.) For its part, MacQuesten's Project Manager for the Palmer Court Homes, Alan Goncharoff, submitted his own sworn affidavit asserting that value of the work completed by HCE was reflected in the progress payment applications and not in the HCE invoices. (Reply Affidavit of Alan Goncharoff, sworn to July 13, 2001 ("Goncharoff Reply Aff."), ¶ 10, 18.) Furthermore, in his reply affidavit, Goncharoff contends that "I also never advised HCE that MacQuesten would only pay what it could afford. In fact, HCE was repeatedly advised that it would be paid the full value of the work it completed, in accordance with its subcontract agreements." (Id. at ¶ 17.)

The parties also disagree on the way in which their contractual relationship effectively ended. MacQuesten claims that HCE simply walked off the job. (Affidavit of Rella Fogliano, sworn to Apr. 25, 2001 ("Fogliano Aff."), ¶ 8.) HCE contends that it was locked out of the project site and prohibited from re-entering. (Hildreth Dec., ¶ 27).

Thus, the Court is faced with a classic case of dueling affidavits that raise hotly contested issues of fact. As the Court noted earlier, neither party presents a factual case so convincing that the Court is compelled endorse it over the other. At the same time, both parties have come forward with sworn testimony and documentary submissions that, at least at this stage of the litigation, raise genuine issues of material fact. As such, the Court finds that most of the claims ...


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