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Danis Windows & Glass, Inc. v. The Fidelity and Deposit Co. of Maryland

United States District Court, E.D. New York

March 23, 2017

DANI'S WINDOWS & GLASS, INC., Plaintiff,
v.
THE FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Defendant.

          MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION

          DORA L. IRIZARRY, Chief United States District Judge.

         Plaintiff, Dani's Windows & Glass, Inc. (“DWG”), initiated this proceeding on January 15, 2014 by filing a Complaint alleging that Defendant, The Fidelity and Deposit Company of Maryland (“Fidelity”), breached two construction contracts by failing to make required payments on their associated bonds. Specifically, DWG claimed that Fidelity failed to pay it for work performed on the Glen Oaks Library (“Glen Oaks”) in Queens, New York, and for the work performed on the Riverside Health Center (“Riverside”) in Manhattan, New York. See Complaint (“Compl.”), Dkt. Entry No. 1. On August 8, 2014, Fidelity filed an Amended Answer (“Am. Answer”) and counterclaimed that DWG had abdicated its duties under the Riverside contract and abandoned the project before completion. See Am. Answer, Dkt. Entry No. 22.

         Both parties moved for partial summary judgment. DWG served its motion on February 4, 2015. See Br. in Supp. of Pl.'s Mot. for Partial Summ. J. (“DWG Mot.”), Dkt. Entry No. 41-17. Fidelity served its opposition papers on February 18, 2015. See Br. in Opp. to Pl.'s Mot. for Partial Summ. J. (“Fidelity Opp.”), Dkt. Entry No. 42. DWG served its reply on March 20, 2015. See Reply Br. in Further Supp. of Pl.'s Mot. for Partial Summ. J. (“DWG Reply”), Dkt. Entry No. 43. DWG's motion sought summary judgment on the issue of liability and damages concerning Fidelity's alleged breach of the Glen Oaks contract, only. See DWG Mot.

         Fidelity served its cross-motion on February 18, 2015. See Br. in Supp. of Def.'s Mot. for Partial Summ. J. (“Fidelity Mot.”), Dkt. Entry No. 44-30. DWG served its opposition papers on March 20, 2015. See Br. in Opp. to Def.'s Mot. for Partial Summ. J. (“DWG Opp.”), Dkt. Entry No. 45. Fidelity served its reply, and filed all motion papers for both motions, on April 17, 2015. See Reply Br. in Further Supp. of Def.'s Mot. for Partial Summ. J. (“Fidelity Reply”), Dkt. Entry No. 46. Fidelity's motion sought summary judgment only on its counterclaims for DWG's alleged breach of the Riverside contract. See Fidelity Mot.

         On June 16, 2016, this Court referred the two motions to United States Magistrate Judge James Orenstein for a Report and Recommendation (“R & R”). On September 7, 2016, the magistrate judge issued an R & R recommending that the Court grant Dani's motion, deny Fidelity's motion, and proceed to trial on all remaining issues. See generally R & R, Dkt. No. 47. In granting DWG's motion, the magistrate judge determined that: (1) the work performed by DWG was properly authorized; (2) the only item challenging the validity of the authorizations was a conclusory affidavit generated after the close of discovery; and (3) DWG's alleged debt to Fidelity for the Riverside project does not prevent granting summary judgment to Plaintiff. Id. at 7-10. In denying Fidelity's motion, the magistrate judge found that the determination as to whether DWG had abandoned the Riverside project “boil[ed] down to a factual question of whether [DWG] substantially completed its contractual performance before” the October 30, 2013 meeting. Id. at 12.

         On September 21, 2016, Fidelity timely filed objections to the R & R, raising ten arguments. See Objs. to R & R of the Hon. James Orenstein, U.S. Mag. Judge, E.D.N.Y. Dated Sept. 7, 2016 (“Objs.”), Dkt. Entry No. 48. DWG opposed those objections on October 5, 2016. See Pl. Dani's Windows & Glass, Inc.'s Mem. of Law in Resp. to Def.'s Rule 72 Objs. (“Objs. Opp.”), Dkt. Entry No. 48.

         For the reasons below, the objections are overruled and the R & R is adopted in its entirety.

         DISCUSSION[1]

         When a party objects to an R & R, a district judge must make a de novo determination as to those portions of the R & R to which a party objects. See Fed. R. Civ. P. 72(b)(3); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). However, if a party “simply relitigates his original arguments, the Court reviews the Report and Recommendation only for clear error.” Antrobus v. New York City Dep't of Sanitation, No. 11-CV-5434 (CBA) (LB), 2016 WL 5390120, at * 1 (E.D.N.Y. Sept. 26, 2016) (internal citations and quotation marks omitted); see also Rolle v. Educ. Bus Transp., Inc., No. 13-CV-1729 (SJF) (AKT), 2014 WL 4662267, at *1 (E.D.N.Y. Sept. 17, 2014) (explaining that to allow “a rehashing of the same arguments set forth in the original papers . . . would reduce the magistrate's work to something akin to a meaningless dress rehearsal.”) (internal citations and quotation marks omitted). Similarly, the Court will not “ordinarily . . . consider arguments, case law and/or evidentiary material which could have been, but [were] not, presented to the magistrate judge in the first instance.” Santiago v. City of New York, No. 15-CV-517 (NGG) (RER), 2016 WL 5395837, at *1 (E.D.N.Y. Sept. 26, 2016) (internal citation and quotation marks omitted). After its review, the district court may then “accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).

         Fidelity's objections are that: (1) the magistrate judge made an improper factual determination (Objs. at 8); (2) Fidelity raised triable issues of fact concerning rejected change orders (Id. at 4-5); (3) the evidence does not support DWG's claim that Summit authorized all additional work for which it seeks payment (Id. at 7-8); (4) the magistrate judge incorrectly found that a witness' deposition testimony contradicted his post-discovery affidavit (Id. at 8); (5) the magistrate judge made an improper credibility determination (Id. at 5-7); (6) Fidelity should be excused from a typographical error in its opposition papers that cited to the wrong exhibit and the Court should re-evaluate its argument based on the correct exhibit (Id. at 2-3); (7) the magistrate judge ignored N.Y. State Fin. Law § 137 (Id. at 9); (8) a final judgment should not be entered on the question of the Glen Oaks project under Fed.R.Civ.P. 54(b) (Id. at 12); (9) if the Court adopts the R & R's findings vis-à-vis the Glen Oaks project, enforcement should be stayed under Fed.R.Civ.P. 62(h) (Id. at 12-13); and (10) the record establishes that DWG's work on the Riverside project was not substantially complete (Id. at 10-11).

         I. The Giattino Affidavit

         The first five objections concern the post-discovery Affidavit of Frank Giattino, the Executive Vice President of Summit Construction Services Group, Inc.[2] See Objs. at 2-8; see also Aff. of Frank Giattino in Opp. to Pl.'s Mot. (“Giattino Aff.”), Dkt. Entry No. 42-28. For most of these objections, the discussion is confined to three specific paragraphs. For ease of reference, the paragraphs at issue are reproduced below:

         DANI'S CLAIM INCLUDES CHANGE ORDERS WHICH HAVE NOT BEEN APPROVED OR PAID FOR BY OWNER

5. Plaintiff has included several change orders in its claim against the Glen Oaks project that have either not been approved and paid for by the project owner, the Department of Design and Construction (“DDC”), or have been conclusively rejected.
6. These change orders include one for $14, 115.36 which has not been paid for by the DDC and several others totaling another $12, 295.00 which have been rejected, as they seek compensation for work that was part of Plaintiff's base scope of work.
7. While [Fidelity] disputes that anything is owed with respect to the Glen Oaks project, at the very least the fact that there are several disputed change orders necessitates that the court deny any motion made by the ...

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