The opinion of the court was delivered by: VICTOR Marrero, U.S. District Judge.
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
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
Statement of the Court: March 22, 2002
MacQuesten General Contracting, Inc. v. HCE, Inc., et al.
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
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 ...