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Zimmcor (1993 v. Permasteelisa North America Corp

April 26, 2012

ZIMMCOR (1993) INC., PLAINTIFF,
v.
PERMASTEELISA NORTH AMERICA CORP., DEFENDANT.



The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Currently before the Court is Plaintiff's motion in limine seeking the following relief: (1) an order precluding Defendant from introducing at trial all evidence related to the provisions in the Primary Subcontract between Defendant and Turner Construction Company ("Turner"), which are referenced in the Secondary Subcontract between Plaintiff and Defendant, other than those which relate to the scope, quality, character or manner of Plaintiff's work; and (2) an order precluding Defendant from introducing at trial a letter agreement between Plaintiff and Defendant entered into on or about May 27, 2008, on account of a provision therein which provides that the agreement would not be disclosed by the parties without their mutual consent, unless required by process of law. See Dkt. No. 39-6 at 3.

II. BACKGROUND

This lawsuit arises out of a construction project at the campus of Rensselaer Polytechnic Institute ("RPI"), in Troy, New York, for the construction of the Experimental Media Performing Arts Center (hereinafter the "Project"). On or about July 30, 2004, RPI entered into a contract with Turner, whereby Turner was to serve as the construction manager for the Project (the "Primary Contract").

Turner entered into a subcontract with Josef Gartner USA ("Gartner") -- Defendant's predecessor in interest -- whereby it was to perform a portion of the work at the Project for Turner (hereinafter the "Primary Subcontract").*fn1 On June 21, 2005, Plaintiff and Defendant, through Gartner, executed a "Secondary Subcontract." Pursuant to the Secondary Subcontract, Plaintiff was to perform the design, procurement, fabrication, assembly, testing, supply, distribution, erection and installation of a portion of the "Curtain Wall System" that Defendant had subcontracted with Turner to construct.

After execution of the Secondary Subcontract, Plaintiff's Vice President, Akiva Markus, served as Plaintiff's project manager for the Project. As Plaintiff's project manager, Mr. Markus was responsible for overseeing the management of Plaintiff's work, including the design of the curtain walls, the manufacturing of the components at Plaintiff's facility, the delivery of the components to the Project site, installation at the Project site, and payment from Defendant for the work performed.

During the course of Plaintiff's performance of its work under the Secondary Subcontract, Plaintiff entered into a subcontract with Patriot Glass & Mirror, Ltd. ("Patriot"), under which Patriot agreed to furnish labor to Plaintiff necessary for Plaintiff to complete its work under the Secondary Subcontract. On July 19, 2007, Patriot requested Plaintiff's assistance in obtaining laborers from Defendant to supplement Patriot's workforce. In response, Mr. Markus forwarded Patriot's email to Defendant's project manager, Joseph Tizn, and suggested that Patriot contact Mr. Tizn directly.

Thereafter, Patriot and Defendant entered into an agreement whereby laborers on Defendant's payroll worked under Patriot's direction to perform Patriot's work. Plaintiff was not a party to the agreement between Defendant and Patriot. When Patriot refused to pay Defendant for the cost of the laborers that Defendant provided, Defendant sought payment from Plaintiff in the form of a backcharge against the amount owed from Defendant to Plaintiff under the Secondary Subcontract. On May 27, 2008, Plaintiff and Defendant entered into a letter agreement regarding Defendant's assessment of the alleged backcharge. The letter agreement provided that it would not be disclosed by the parties without their mutual consent, unless required by process of law.

III. DISCUSSION

The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility of certain forecasted evidence. See Luce v. United States, 469 U.S. 38, 40 n.2 (1984); see also Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996). A court should exclude evidence on a motion in limine only when the evidence is clearly inadmissible on all potential grounds. See Baxter Diagnostics, Inc. v. Novatek Med., Inc., No. 94-cv-5220, 1998 WL 665138, *3 (S.D.N.Y. Sept. 25, 1998). Courts considering a motion in limine may reserve decision until trial so that the motion is placed in the appropriate factual context. See Nat'l Union Fire Ins. Co. v. L.E. Myers Co. Group, 937 F. Supp. 276, 287 (S.D.N.Y. 1996). Alternatively, the court is "free, in the exercise of sound judicial discretion, to alter a previous in limine ruling" at trial as "the case unfolds, particularly if the actual testimony differs from what was contained in the [movant's] proffer." Luce, 469 U.S. at 41-42.

A. Incorporation by reference

Plaintiff asserts that incorporation clauses in construction subcontracts only bind the subcontractor to the provisions of the prime contract which relate to "'the scope, quality, character and manner of the subcontractor's work'" and that "'unrelated prime contract provisions such as a "dispute" clause governing the resolution of monetary claims between the project owner and general contractor are not incorporated by reference into a subcontract.'" See Dkt. No. 39-6 at 7 (quotation and other citations omitted). As such, Plaintiff claims that Defendant should be precluded from introducing all provisions of the Primary Subcontract, other than those which relate to scope, quality, character or manner of Plaintiff's work. See id. Defendant argues, however, that the Court should deny the motion because this issue was already decided in the Court's March 30, 2012 Memorandum-Decision and Order. See Dkt. No. 53-5 at 4 (citation omitted). Moreover, Defendant asserts that the Secondary Subcontract specifically identifies certain terms and provisions of the Primary Subcontract and is therefore sufficiently particular to incorporate these provisions by reference. See id. at 5-6.

"Generally, clauses which seek to bind a subcontractor to the terms of a prime contract through incorporation by reference only bind the subcontractor to provisions relating to the 'scope, quality, character and manner of the work to be performed by the subcontractor.'" Dart Mechanical Corp. v. XL Specialty Ins., 593 F. Supp. 2d 464, 470 (E.D.N.Y. 2008) (citing Bussanich v. 310 E. 55th St. Tenants, 723 N.Y.S.2d 444, 445, 282 A.D.2d 243, 244 (1st Dep't 2001)). "By no means can it be said, though, that other terms in a prime contract can never be incorporated into a subcontract by reference." Id. "New York construction contract law merely holds that other kinds of provisions cannot be incorporated with standard, blanket incorporation language." Id. (citing Wolff & Munier, Inc. v. ...


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