The opinion of the court was delivered by: I. LEO GLASSER, Senior District Judge
Defendant United States Fidelity & Guaranty Company ("USF&G" or
"Defendant"), a Maryland corporation, brings this motion seeking
summary judgment in an action brought by plaintiff Underpinning &
Foundation Constructors, Inc. ("Underpinning" or "Plaintiff"), a
New York corporation, to recover for work in performed on a
public works project for the New York Power Authority, payment
for which was assured by defendant's bond.
Defendant argues that plaintiff is not a proper claimant under
the bond because the underlying contract was in the name of
"Underpinning & Foundation-Skanska, Inc." ("U&F-Skanska") instead
of "Underpinning & Foundation Constructors, Inc."
For the reasons that follow, defendant's motion is denied.
On or about December 19, 2001, the New York Power Authority
entered into a contract with North Star Contracting Corporation ("North Star") for
construction of a project designated as the Poletti 500 MW
Combined Cycle Power Plant ("the Project").
On or about February 11, 2002, USF&G, as surety, and North
Star, as principal, executed and delivered to the Power
Authority, as obligee, a Payment Bond, Bond No. SN9763, in the
penal amount of $5,944,000 ("the Bond").
In June 2002, a subcontract was created for the performance of
piledriving, steel sheet piling and caisson work on the Project
for the sum of $1,446,006.03 ("the Subcontract"). North Star is
named as the Contractor. The named subcontractor is "Underpinning
& Foundation-Skanska, Inc., a New York corporation having a place
of business at 46-36 54th Road, Maspeth, New York." (Def. Notice
of Mot. Ex. B.) It is undisputed that the Subcontract was
prepared by North Star. It is also important to note that the
heading in Rider "A" to the Subcontract references "Underpinning
& Foundation" as the Subcontractor, not "Underpinning &
Foundation-Skanska, Inc.," and the text of Rider "A" refers
simply to "Underpinning." (Def. Notice of Mot. Ex. B.)
Plaintiff alleges that it performed the work required by the
Subcontract, but that North Star has refused to pay beyond a
single payment of $388,467.16.
On or about April 9, 2003, a Notice Under Mechanic's Lien Law
for Account of Public Improvement ("the Lien") was filed in the
name of U&F-Skanska.
In November 2003, plaintiff filed the present suit against
defendant, asserting that pursuant to the terms of the Bond,
defendant is obligated to pay plaintiff $1,057,538.87, the amount
owed to it by North Star under the Subcontract, plus an
additional $338,196.33 for work it performed beyond the scope of
the Subcontract at North Star's request. III. DISCUSSION
The principles informing a court's judgment in a motion for
summary judgment have been stated and restated so frequently as
not to warrant restating again. See Matsushita Electric
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Celotex
Corp. v. Catrett, 477 U.S. 317 (1986).
Defendant's assertion that the plaintiff was not the party to
the Subcontract with North Star, given the plaintiff's exhibits
and affidavits opposing this motion, is startling. It can only be
ascribed to a bold attempt to avoid an obligation which is
plainly theirs. North Star's use of "Skanska" in the Subcontract
and plaintiff's ...