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Carlo Lizza & Sons Paving, Inc. v. International Fidelity Insurance Co.

September 29, 2006


The opinion of the court was delivered by: Hurley, District Judge


Plaintiff Carlo Lizza & Sons Paving, Inc. ("Plaintiff"), a paving contractor, brings this action for breach of contract against defendant International Fidelity Insurance Company ("Defendant") seeking payment for work it allegedly was unable to complete under the contract due to Defendant's breach. Defendant moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6), or alternatively, for summary judgment, pursuant to Rule 56. For the reasons that follow, Defendant's motion is denied.


The material facts, drawn from the Complaint and the parties' Local 56.1 Statements, are undisputed unless otherwise noted.

I. The Construction Project

In April 1997, the County of Nassau ("Nassau County") entered into a contract (the "Contract") with Roman Roads Construction Corp. ("Roman") for the improvement of Rockaway Turnpike and the installation and updating of a sewage treatment plant in Inwood, New York (the "Construction Project"). Defendant was the surety for the Construction Project. As surety, Defendant executed and delivered a performance bond guaranteeing performance of the Contract by Roman.

In September 1997, Nassau County declared Roman in default under the Contract. Upon Roman's default, Defendant became responsible for performing the work required by the Contract.

Defendant maintains that it entered into an agreement with Roman for completion of the Construction Project (the "Completion Agreement"), pursuant to which Roman agreed to perform and complete all of the work required under the Contract, as the "Completion Contractor." Defendant also submits that in furtherance of the Completion Agreement, Roman entered into a subcontract with Plaintiff (the "Subcontract"), pursuant to which Plaintiff agreed to remove and replace asphalt paving at the Construction Project on a "time and material basis." (Def.'s Rule 56.1 Stmt. ¶ 8.) The Subcontract consists of a one-page "PROPOSAL," submitted to Roman from Plaintiff, and is dated October 23, 1998. (See Aff. of Francis Whelan, dated Dec. 12, 2005 ("Whelan Aff."), Ex. F.) It is signed at the bottom under the terms "ACCEPTANCE OF PROPOSAL" by the President of Roman. (Id.) The proposal states that Plaintiff will excavate and replace the "base asphalt" at a price of $116.00 per ton. (Id.)

Plaintiff maintains that although the proposal was submitted to Roman, Roman's limited role was as agent for Defendant and it was actually Defendant which hired Plaintiff to complete the paving portion of the Construction Project. In this regard, Plaintiff alleges that once Roman defaulted under the original Contract, Defendant became "the general contractor on the job and was in full control of the Construction Project, pursuant to the [performance] bond." (Pl.'s Response to Def.'s Rule 56.1 Stmt. ¶ 21.) Plaintiff further contends that once it began working, it issued its invoices directly to Defendant. Copies of Plaintiff's invoices indicating that they were submitted to Defendant are attached as exhibits.

Defendant maintains that the Subcontract was between Roman and Plaintiff and that it was never in privity with Plaintiff. It disputes the relevancy of the invoices by explaining that, under the Completion Agreement, Roman reviewed and approved all invoices submitted by subcontractors and, in turn, referred requisitions for payment to Nassau County. Because Nassau County was allegedly not issuing payments in a timely fashion, Defendant "fund[ed] a trust account set up pursuant to the Completion Agreement" whereby "[a]ll payees, including [Plaintiff], would be paid with checks drawn on the trust account by the account trustee, [Lovett Silverman Construction Consultants Inc. ("Lovett Silverman")]." (Whelan Aff. ¶ 13.) Months later, Defendant would be reimbursed by Nassau County. (Id.) Defendant submits copies of two checks made to Plaintiff, drawn on Lovett Silverman's account. (Id. Ex. E.)

II. The Alleged Breach of the Subcontract

The parties agree that pursuant to the Subcontract, Plaintiff's paving obligations were originally to be performed on a night schedule. Thereafter, however, Nassau County demanded that the paving work be done during the day. Accordingly, on or about November 25, 1998, Plaintiff began performing its paving work on a daytime schedule. Plaintiff contends that as a result of this new schedule, it was forced to change the location of its asphalt supplier which significantly increased its costs and caused it to "incur a delay in the performance of the Subcontract." (Pl.'s Response to Def.'s Rule 56.1 Stmt. ¶ 29.)

On March 13, 2000, Plaintiff sent a letter to Defendant outlining a "break-down for what [Plaintiff] lost due to the contractor work being switched from night-time work to daytime work." (Whelan Aff., Ex. H.) The letter indicates that the change in schedule caused Plaintiff to lose a total of 3,047.52 tons of asphalt at a contract price of $116.00 per ton, totaling $353,512.32. (Id.) The letter concludes by stating that Plaintiff "is now submitting this loss of productivity claim in the amount of $353,512.32 for your review." (Id.) On March 24, 2000, Defendant requested that Plaintiff complete a Proof of Claim form as part of its investigation of Plaintiff's claim. (Id. Ex. I.) Defendant's request was made "without prejudice to the rights of [Defendant] and [indicated that it] shall not constitute a waiver or release of any of its rights, defenses, claims or setoffs." (Id.) Plaintiff thereafter submitted its Proof of Claim and Defendant responded that the claim was under review.

III. The Instant Action

In September 2005, Plaintiff commenced this litigation in Supreme Court, Nassau County. On October 29, 2005, Defendant removed the action to this Court. The "AMENDED VERIFIED COMPLAINT" sets forth three causes of action: (1) breach of the Subcontract based upon the change in the work schedule; (2) breach of the Subcontract based upon Defendant's non-payment for goods supplied and work performed; and (3) recovery for an "account stated."

By letter dated November 4, 2005, Defendant requested permission to move to dismiss the Complaint pursuant to Rule 12(b)(6). Plaintiff opposed the application. On November 14, 2005, the Court granted Defendant permission to make its motion and issued a briefing schedule. Although Defendant's November 4th letter did not reference Rule 56, and despite the fact that there has been no discovery in this case, Defendant now moves to dismiss the Complaint pursuant to ...

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