Opinion
Docket Nos. 04-0843-CV(L), 04-1162-CV(XAP).
Argued: January 11, 2005.
Decided: February 1, 2005.
Appeal and cross-appeal from a Memorandum Opinion and Order of the United States District Court for the Southern District of New York (Charles S. Haight, Jr., Judge), holding a construction contract invalid because an express condition precedent was not satisfied.
Affirmed. Cross-appeal dismissed as moot.
Benjamin D. Lentz, Torre, Lentz, Gamell, Gary Rittmaster LLP, Jericho, NY, for Plaintiff-Defendant-Appellant-Cross-Appellee.
John M. Agnello (James E. Cecchi and Lindsey H. Taylor, on the brief), Carella, Byrne, Bain, Gilfillan, Cecchi, Stewart Olstein, Roseland, NJ, for Plaintiff-Appellee-Cross-Appellant.
Vincent J. Zichello, Zichello McIntyre, LLP, New York, NY, for Defendant-Counter-Claimant-Appellee.
Fay NG (Pamela Seider Dolgow; Michael A. Cardozo, Corporation Counsel, on the brief), Office of the Corporation Counsel of the City of New York, New York, NY, for Defendant-Counter-Claimant-Cross-Appellee.
Before: KEARSE, CABRANES and SACK, Circuit Judges.
This case, brought in the United States District Court for the Southern District of New York (Charles S. Haight, Jr., Judge) under the Court's diversity jurisdiction, arises out of efforts to renovate the Morris High School in Bronx, New York. The District Court held that a contract to complete the renovation — the "Completion Agreement" memorialized on March 18, 1994 by The Aetna Casualty and Surety Company ("Aetna") and Aniero Concrete Company, Inc. ("Aniero") — was invalid due to an unsatisfied condition precedent. On appeal, Aetna disputes the District Court's conclusion. We affirm.
In 1992, the New York City School Construction Authority ("SCA") contracted with the P.J. Carlin Construction Company ("Carlin") to perform the Morris High School renovation. The SCA's arrangement with Carlin subsequently collapsed, leading Aetna, Carlin's surety, to solicit bids for completing the work. See Aniero Concrete Co. v. N.Y. City Constr. Auth., 1997 WL 3268 (S.D.N.Y. Jan. 3, 1997). Aetna accepted Aniero's bid, and the two parties memorialized the Completion Agreement. See id. at *1. After "mobiliz[ing]" on the job site, Aniero claims to have discovered that it had been "given an inaccurate and misleading description of the work completed by Carlin." Id. at *1.
In December 1994, Aniero commenced this action, asserting tort and contract claims against, inter alia, Aetna and the SCA. Aetna subsequently filed an action against General Accident Insurance Company of America ("General"), Aniero's surety, in New York state court; that action was removed to federal court and consolidated with Aniero's action. On March 24, 1997, the SCA filed a counterclaim against Aniero and a cross-claim against Aetna. Further background facts, as well as the history of this litigation's motion practice, are set forth in detail in the District Court's Memorandum Opinions and Orders dated January 3, 1997, see Id.; February 27, 1997, Aniero Concrete Co. v. N.Y. City Constr. Auth., 1997 WL 83308 (S.D.N.Y. Feb. 27, 1997); and March 30, 1998, see Aniero Concrete Co. v. N.Y. City Constr. Auth., 1998 WL 148324 (S.D.N.Y. 1998) (" Aniero Summary Judgment").
In due course, on March 30, 1998, the District Court issued a Memorandum Opinion and Order addressing, inter alia, the parties' motions for summary judgment. Aniero Summary Judgment,. The Court concluded that the Completion Agreement was invalid due to an unsatisfied express condition precedent — the SCA's written consent to the assignment of the Carlin contract to Aniero. Id. Accordingly, the SCA's counterclaim against Aniero was dismissed because it was premised on the validity of the Completion Agreement. Id. Moreover, the Completion Agreement having been declared invalid, the District Court held that "the performance bond issued by General as security for the Completion Agreement is also a nullity." Id. The District Court thus dismissed Aetna's claims against General. Id. The Court further noted that Aniero and General had agreed not to press their claims if the Completion Agreement were held invalid; the Court, therefore, regarded as moot any motions seeking the dismissal of Aniero's or General's actions, as well as General's own cross-motion for summary judgment in its favor. Id. On May 19, 1998, the District Court denied Aetna's motion for reconsideration.
In its Memorandum Opinion and Order of March 30, 1998, the District Court also granted Aniero leave to amend its pleadings to include a quantum meruit claim against Aetna. Aniero shortly asserted such a claim. Following a bench trial, the District Court entered a judgment in Aniero's favor on the quantum meruit claim in the amount of over $3.5 million. See Aniero Concrete Co. v. Aetna Cas. Sur. Co., No. 94 Civ. 9111 (S.D.N.Y. Feb. 3, 2004) (final judgment); see also Aniero Concrete Co. v. Aetna Cas. Sur. Co., 301 F.Supp.2d 302 (S.D.N.Y. 2004). Because Aetna does not challenge the quantum meruit judgment except to ask that it be vacated if we conclude that there was a valid contract, and because we reach no such conclusion, we intimate no view as to the merits of the Court's determination of Aetna's liability to Aniero in quantum meruit.
On appeal, Aetna argues that the District Court incorrectly interpreted the Completion Agreement and that, in any event, the Completion Agreement was so ambiguous as to preclude summary judgment. Aniero cross-appeals, seeking to reinstate its claims if we reverse the District Court's judgment and hold that the Completion Agreement was valid.
For substantially the reasons stated in the District Court's Memorandum and Order of March 30, 1998, we affirm. We therefore need not reach the question raised by Aniero's protective cross-appeal, and we dismiss the cross-appeal as moot.