The opinion of the court was delivered by: Sand, J.
Following the issuance of our August 21, 2007 opinion (Millgard VII) and pursuant to the Court's instructions both parties have submitted motions for reconsideration and proposed judgments. For the reasons stated below, after reconsideration, the Court adheres to the holdings set forth in Millgard VII*fn1 for the reasons set forth herein:
Millgard requests reconsideration of this Court's refusal to add either $259,791.94 for "Equipment Purchases and Modifications" or $168,990 for the fair rental value of said equipment.
This item relates to Millgard's seeking to charge as a direct cost the purchase price of equipment the useful life which extended beyond the anticipated life of the Flushing Project.
Millgard argues (Motion p. 5) that the equipment was never used again because Millgard never had another soil mix job. Hindsight however does not alter the nature of the equipment or its anticipated future use at the time of its purchase.
Although we stated in Millgard VII that the fair rental value of such equipment may be charged as an expense (Opinion p. 6) the Joint Venture ("JV") persuasively argues that "the claim for fair rental value of the equipment was not included in any of Millgard's prior damage submissions", and that it believes that the amount sought by Millgard is inherently unreasonable, being 65% of the alleged purchase costs. (JV Aligned Defendant's Notice of Motion, p. 27) and that it has had no opportunity to challenge these figures.
The Court agrees with the JV that it is simply too late to reopen these proceedings for this new single item. Millgard's motion is denied.
Much of the JV's motion is a reargument of issues on which the Court has already ruled. The JV has adequately preserved its rights to assert its claims and we do not believe an extended discussion of issues already ruled on by this Court is necessary or appropriate.
I. Issue of Date of Termination
JV argues that the date of hypothetical termination for convenience due to impossibility is the date of Millgard's actual termination and that lost profits are zero.
In Millgard VII we explicitly stated at p. 9 that "[a]lthough one can quarrel about the appropriate cut off date, Millgard's selection of the date Joint Venture entered into a contract with another company [Bauer] to construct an alternative ESS seems reasonable)."
In opposition to JV's motion Millgard cites testimony of Dennis Millgard that he was engaged with activities related to the project until the end of March and the fact that the JV never asserted impossibility as a reason for Millgard's termination (TMC ...