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Perini/O&G v. Usiminas Mecanica S.A.

United States District Court, S.D. New York

January 20, 2015


For Perini/O& G A Joint Venture, Plaintiff: Michael J. Hogan, LEAD ATTORNEY, Duane Morris, LLP (NYC), New York, NY.

For Usiminas Mecanica S. A., Defendant: Martin Domb, LEAD ATTORNEY, Akerman LLP, New York, NY; Jeffrey G. Gilmore, PRO HAC VICE, Akerman Senterfitt (DC), Washington, DC; John Michael Neary, Pavan Ishwar Khoobchandani, Akerman LLP, Washington, DC.


Vincent L. Briccetti, United States District Judge.

Plaintiff Perini/O& G brings this diversity action against defendant Usiminas Mecânica S.A. (" UMSA"), asserting claims under New York law for breach of contract, breach of express and implied warranties, and breach of the implied covenant of good faith and fair dealing.[1]

Before the Court is UMSA's motion for summary judgment on the ground that this action is time-barred. (Doc. #54). For the following reasons, the motion is GRANTED in part and DENIED in part.

The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332.


The parties have submitted briefs, statements of facts, and declarations with supporting exhibits, which reflect the following factual background.

I. The Prime Contract Warranty

This action arises out of a construction project to replace portions of the roadway on the Bronx-Whitestone Bridge. In December 2003, the Triborough Bridge and Tunnel Authority (" TBTA") hired plaintiff to be the project's general contractor. Plaintiff's contract with the TBTA (the " Prime Contract") includes a " Warranty of Construction" (the " Prime Contract Warranty"), which provides, in pertinent part: " For a period of one year from the date of Substantial Completion, the Contractor warrants that the Work conforms to the [Prime] Contract requirements and is free of any patent or latent defect of the material or workmanship." (Gilmore Decl. Ex. 3).

The Prime Contract defines " Work" as " all matters and things herein agreed to be constructed, furnished, installed, or done, by or on the part of the Contractor." (Flynn Aff. Ex. B). The " Work" is " Substantially Complete" when a TBTA-designated engineer determines " there are no material and substantial variations from the Contract Documents and the Work is fit for its intended purpose." (Id.). Upon " Substantial Completion, " the engineer must issue a " Certificate of Substantial Completion." (Id.).

Although TBTA's engineer ultimately decides when the project is Substantially Complete, the Prime Contract allows plaintiff to submit a written request for inspection " [w]hen [plaintiff] is of the opinion that the Work is Substantially Complete." (Flynn Aff. Ex. B). If plaintiff makes such a request, within twenty-five days the TBTA must either issue a Certificate of Substantial Completion or provide a written explanation of why the Work is not Substantially Complete.

Here, by letter dated April 3, 2007, plaintiff informed the TBTA that, in plaintiff's view, the project was Substantially Complete. Accordingly, plaintiff requested the engineer perform an inspection and issue a Certificate of Substantial Completion. But, as of the filing of this motion, no Certificate of Substantial Completion has been issued.

II. The Purchase Order and the BAS Warranty

In March 2004, plaintiff entered into a separate contract with UMSA (the " Purchase Order") under which UMSA agreed to manufacture and supply orthotropic steel deck panels and other steel products for the project. UMSA was to weld each panel to underlying support ribs.

The Purchase Order contains an express warranty by UMSA " that items and work covered by [the Purchase Order] will conform to the specifications, drawings, design, plans, data, or other description furnished or specified by [plaintiff], will be fit and sufficient for the purpose intended, merchantable, of good material and workmanship and free from defects" (the " Purchase Order Warranty"). (Gilmore Decl. Ex. 1).

Elsewhere in the Purchase Order, UMSA represented it would pay " the cost of correcting non-conforming conditions [in the deck panels] caused by [UMSA]." (Gilmore Decl. Ex. 1).

UMSA also agreed to apply a " bonded aggregate surface" (" BAS") on the deck panels.[2] (Gilmore Decl. Ex. 1). Section 02548 of the Prime Contract details the BAS-related work to be done. Section 02548 contains the following warranty provision (the " BAS Warranty"):

The Manufacturer [a company named Poly-Carb Corporation] and the Contractor [plaintiff], by acceptance of the Work described in this specification, jointly agree to guarantee the wearing surface against all defects incurred for a period of five (5) years. The guarantee shall commence on the date of acceptance of the [BAS-related] Work [by the TBTA]. The guarantee shall cover, all labor and materials required to satisfactorily repair or replace the wearing surface due to defects in materials and workmanship.

(Flynn Aff. Ex. F).

Plaintiff contends the Prime Contract Warranty and the BAS Warranty were incorporated by reference into the Purchase Order and, therefore, are binding on UMSA.

III. Delivery of the Deck Panels and Discovery of Defects

It is undisputed UMSA delivered all of the orthotropic steel deck panels to plaintiff by no ...

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