agreements. Each of these issues presents material issues of fact which
preclude summary judgment at this stage of the litigation.
As to the first argument, the Court agrees with MacQuesten that HCE
signed and executed partial waivers of lien each time that HCE submitted
a progress payment application. That is not to say, however, that the
partial waivers are completely free of ambiguity. Under New York law, a
clear and unambiguous waiver will be given full force and effect. See
Thailer v. LaRocca, 571 N.Y.S.2d 569, 571 (App. Div.2d Dep't 1991). The
ambiguity arises from two sources: first, Hildreth, in his sworn
testimony, emphatically asserts that the parties understood the waivers
in the progress payment applications to be receipts of partial payments,
with full payment on the invoices due at a later date; second, Hildreth's
contention is supported in part by the practices of the parties as
evident in some of the progress payment applications themselves —
that is, several applications, in fact, indicate that MacQuesten made
only partial payments on past due amounts that were credited in the next
month, with subsequent payment applications reflecting some aggregate
value of work performed to date. (Hildreth Dec., ¶ 9.) Thus, a
factual issue arises as to whether the parties did in fact implement a
system of partial payment for work performed and as to the nature and
function of the partial waivers.
The Court's discussion should not be mistaken for the proposition that
the partial waivers are null and void. HCE clearly executed some sort of
release. But the Court cannot resolve the factual disputes surrounding
the interpretation of the partial waivers without giving HCE an
opportunity to prove its case in light of the arguments raised.
As to MacQuesten's second ground, the Court finds that plaintiff
conflates the issues of grounds to terminate with the responsibility to
pay for work performed. MacQuesten may be able to prove that it had
grounds to terminate the contract due to HCE's failure to pay its vendors
and laborers; nevertheless, termination would not preclude HCE from
recovering amounts owed to it for work performed prior to termination.
Again, those factual issues are not ripe for summary judgment.
With respect to MacQuesten's third argument, the Court agrees with
plaintiff that shortcomings in HCE's expert reports cast some doubt on the
their final conclusions. At the same time, the Court agrees with HCE that
these shortcomings primarily impact the weight of the experts' opinions
and analyses. The parties have raised cross-motions for summary
judgment, not motions in limine, and the record is viewed in the light
most favorable to the non-moving party. If the expert reports are as
faulty as MacQuesten contends, it will have ample opportunity to
challenge them or to expose those shortcomings in later proceedings. At
this stage, however, it is difficult to see how a difference of opinion
as to the weight of an export report supports dismissing HCE's
counterclaims for breach of contract.
As to MacQuesten's fourth ground on the issue of delay damages, the
Court finds that Article 5.3.1 of the sub-contract agreements is
sufficiently limited in scope to raise an issue as to its applicability
here. Specifically, the Court notes that Article 5.3.1 specifically
addresses sequencing delays and delays at the hands of the General
Contractor, that is, MacQuesten. HCE's position that the discovery of
unanticipated rock layers would not trigger the waiver in Article 5.3.1
is plausible at least at this stage of the litigation.
For these reasons, MacQuesten's motion for summary judgment on
the breach of
contract and lien enforcement claims is denied.
Finally, MacQuesten has moved for summary judgment on HCE's fifth,
sixth and seventh counterclaims for conversion and interference with
HCE's economic and business relations. MacQuesten contends that HCE has
failed to identify any equipment converted or any specific statements
that would constitute interference with HCE's economic or business
relations. To the contrary, the Declaration of John J. Hildreth clearly
sets forth the items purportedly converted and the allegedly false
statements made by MacQuesten, identifying the companies and individuals
involved. (Hildreth Dec., ¶ 32-34.) Therefore, material issues of
fact on the conversion and interference claims are not ripe for
disposition on MacQuesten's summary judgment motion.
For all of the foregoing reasons, the Court grants HCE's motion for
partial summary judgment on MacQuesten's second claim for fraud.
Furthermore, the Court grants MacQuesten's motion for summary judgment on
the breach of contract claims, only with respect to the Foglianos. In all
other respects, MacQuesten's motion for partial summary judgment is
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