The opinion of the court was delivered by: Platt, District Judge
Before the Court are cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendant, Handex of New Jersey, Inc. ("Handex"), moves for summary judgment on its first affirmative defense and counterclaim for breach of contract based upon an alleged attempt by Plaintiff, Angle of Attack Land Surveying, LLC ("AOA" or "Plaintiff"), to modify the payment terms of their contract. Defendants, Handex and Great American Insurance Company ("GAIC"), (collectively "Defendants"), move for summary judgment on their sixth affirmative defense asserting that the court lacks subject matter jurisdiction because Plaintiff cannot satisfy the amount in controversy requirement. Plaintiff cross-moves for summary judgment on all claims, affirmative defenses and counterclaims.
As will be explained below, there are so many issues of material fact raised by all of the parties that there is no basis on which any of the motions for summary judgment may be granted. Hence, they are all DENIED, and the parties should prepare for trial.
Defendant, Handex, is a Delaware corporation engaged in the business of landfill construction. (Anderson Aff. ¶ 2). AOA is a New York limited liability company engaged in the business of land surveying. (Mitchell Aff. ¶ 3). Defendant, GAIC, is an Ohio corporation. As will be discussed in greater detail below, Plaintiff asserts that this Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332.
On December 5, 2002, the Islip Resource Recovery Agency ("IRRA") entered into a public works contract with Handex for landfill construction services at the Blydenburgh Road Landfill Complex (the "Contract") in the Town of Islip, New York. (Pl.'s Ex. M). The IRRA issued a notice-to-proceed letter to Handex on December 10, 2002. (Pl.'s Ex. M). The Contract duration was extended from 120 to 180 days, and the completion date was identified as June 7, 2003. (Pl.'s Ex. M). The Contract included a liquidated damages provision for late performance. (Pl.'s Ex. M). Defendant, GAIC, provided the payment bond for the project. (Anderson Aff. ¶ 4).
On December 12, 2002, Handex and AOA entered into a subcontract for land surveying services in connection with the Contract (the "subcontract"). (Def.'s Ex. G). An attachment to the subcontract provided for payment according to an hourly rate schedule. (Def.'s Ex. G). Article 3(a) of the subcontract provided that AOA would submit invoices to Handex "by the 15th of every month for the Work performed or materials delivered to the site during the preceding month. Handex shall pay in full all undisputed portions of invoices within sixty (60) days of receipt." (Def.'s Ex. G). AOA contends that it worked continuously under the subcontract throughout January, February and March. (Mitchell Aff. ¶ 4). On March 16, 2003, AOA submitted its first invoice for $19,133.75 for services rendered through March 15, 2003. (Pl.'s Ex. A). On March 29, 2003, AOA submitted its second invoice for $9,427.50 for services rendered from March 17, 2003 through March 29, 2003. (Pl.'s Ex. B). On April 30, 2003, AOA submitted a third invoice for $13,340.00 for services rendered from March 30, 2003 through April 25, 2003. (Pl.'s Ex. C). AOA asserts that it continued to perform under the subcontract until it was terminated by Handex by letter dated May 14, 2003. (Pl.'s Ex. D).
Under the terms of the subcontract, payment on AOA's first invoice was not due until May 16, 2003. (Def.'s Ex. G). On or about May 3, 2003, however, AOA sent a letter to Handex regarding a "recent conversation" and stating that the letter would serve as a "notice of change order." (Pl.'s Ex. F).
The letter further advised that:
Due to changes in the scope and project requirements Angle of Attack requires that all invoices be paid COD. AOA will require that all outstanding invoices be paid up to date and all further invoices will be paid on a COD basis. Invoices going forward will be billed every Friday by fax and are to be paid by check to be received by the following Wednesday by overnight mail. (Pl.'s Ex. F). AOA's president, Douglas Mitchell ("Mitchell"), states that the May 3, 2003, letter simply confirmed a conversation that he had had with Handex's principal hydrogeologist, Jed Myers ("Myers"), who had signed the subcontract on behalf of Handex. (Mitchell Aff. ¶¶ 1, 10; Def.'s Ex. G). In this conversation, Mitchell alleges that he discussed with Myers the incompetence and mismanagement of the Contract by Handex, which had contributed to the ballooning of AOA's costs and concerns about timely payment, and which eventually led to Handex's default under the Contract.*fn1 (Mitchell Aff. ¶¶ 6, 10, 18-22). Myers, on the other hand, denies that such a conversation with Mitchell ever took place and denies that he directed Mitchell to confirm such a conversation in writing. (Myers Aff. ¶ 6).
Myers and Scott Anderson, Handex's Vice President ("Anderson"), both aver that pursuant to Article 13 of the subcontract, they considered AOA's May 3, 2003 letter to constitute a material breach of the subcontract. (Anderson Aff. ¶ 7; Myers Aff. ¶ 7). Article 13 of the subcontract states that a material breach includes a failure to comply with any term or condition of the subcontract within seven (7) days after written notification to do so. (Def.'s Ex. G). Accordingly, on May 7, 2003, Handex sent a "cure letter" to AOA requiring AOA's "commitment to project completion in accordance with our contractual terms within 24 hours."*fn2 (Pl.'s Ex. G). Thereafter, by letter dated May 9, 2003, AOA affirmed its commitment to project completion but did not withdraw explicitly the payment terms outlined in its May 3, 2003 letter. (Pl.'s Ex. H). A copy of this May 9, 2003 letter was also sent by AOA to IRRA's engineers. Handex claims that this letter was defamatory and directly caused IRRA to terminate Handex. (Def.'s Ex. K). In the meantime, before receiving AOA's response, on May 8, 2003, Handex submitted to IRRA for approval an alternate surveyor, GEOD Corporation. (Pl.'s Ex. M). By letter dated May 14, 2003, Handex terminated AOA. (Def.'s Ex. L).
With respect to the payment received by AOA for services rendered, AOA states that it has only received one check dated April 18, 2003, in the amount of $9,654.88. (Pl.'s Ex. E). AOA claims that this check was sent after Mitchell complained to Myers about payment and was an early payment on its second invoice; the check stub, however, references the date of AOA's first invoice, namely March 16, 2003. (Mitchell Aff. ¶ 7; Pl.'s Exs. A, E). After AOA's termination, AOA objected to the termination by letter dated May 30, 2003, and claimed a balance due of $38,951.87. (Def.'s Ex. M). Handex then tendered payment in the amount of $27,147 but proposed a 15% retainer on funds needed to cover any liquidated damages that Handex had to pay to IRRA. (Pl.'s Ex. I). This tender was rejected by AOA. (Pl.'s Ex. O).
On August 13, 2003, AOA filed the instant suit against Handex and GAIC. (Def.'s Ex. A). AOA asserts a claim for damages in the amount of $100,000 against Handex and a claim under the payment bond in the amount of $100,000 against GAIC. (Def.'s Ex. A). GAIC answered and asserted a counterclaim for attorney's fees under the New York State Finance Law. (Def.'s Ex. B). Handex answered and asserted two counterclaims for breach of contract, a counterclaim for inducing a breach of contract, a counterclaim for interference with contract, and a counterclaim for defamation. (Def.'s Ex. C). Handex requests a $500,000 judgment on its counterclaims. (Def.'s Ex. C).
I. Applicable Legal Standard
A motion for summary judgment may not be granted unless the court determines that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must resolve all ambiguities and draw all inferences in favor of the non-moving party. Id. at 255; Castle Rock Entm't, Inc. v. Carol Publ'g Group, 150 F.3d 132, 137 (2d Cir. 1998). "A party opposing a properly brought motion for summary judgment bears the burden of going beyond the [specific] pleadings, and 'designating specific facts showing that there is a genuine issue for trial.'" Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir. 2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). If there is any evidence in the ...