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UNDERPINNING & FOUND. CONSTRUCTORS v. U.S. FIDELITY & GUAR.

July 16, 2004.

UNDERPINNING & FOUNDATION CONSTRUCTORS, INC. Plaintiff,
v.
UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant.



The opinion of the court was delivered by: I. LEO GLASSER, Senior District Judge

MEMORANDUM AND ORDER

I. SUMMARY

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.

  II. BACKGROUND

  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 ...


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