Opinion
96 CV 3995 (SJ)
September 18, 2002
REPORT AND RECOMMENDATION
On August 12, 1996, plaintiff D.C.R. Trucking Excavation, Inc. ("DCR Trucking") commenced this breach of contract action against defendant/third-party plaintiff Aetna Casualty and Surety Company ("Aetna"), seeking reimbursement for certain work performed in connection with a project for the City of New York (the "City"). The project involved the reconstruction of 14th Street from Avenue C to Hudson Street in Manhattan (See Contract No. HWM-446W or the "Contract"). Aetna, which furnished the payment and performance bonds on the Contract for the general contractor, Perez-Interboro Asphalt Company, Inc. ("Perez"), commenced a third-party action against the City, seeking indemnity for any amount that Aetna may have to pay DCR Trucking.
The City moves for summary judgment, asserting that because Aetna is not in privity with the City, Aetna has no ability to enforce Perez's contract with the City and thus, Aetna's claims should be dismissed. In addition, the City contends that it is entitled to summary judgment based on DCR Trucking's failure to comply with its obligation under the Contract to furnish daily time and materials records to the City.
Both Aetna and DCR Trucking oppose the City's motion for summary judgment. DCR Trucking also cross-moves for permission to amend its Complaint to increase the ad damnum clause of its Complaint to $323,576.00.
For the reasons set forth below, it is respectfully recommended that the City's motion for summary judgment be denied and that plaintiff's motion to amend the Complaint be granted.
FACTUAL BACKGROUND
In or about January 1990, Perez entered into a contract with the City of New York, Department of Transportation ("NYCDOT") for the reconstruction of 14th Street in Manhattan from Avenue C to Hudson Street. (Defs.' 56.1 Stmnt ¶ 1; Rossi Aff. ¶ 5; Silbert Aff. ¶ 3). The Contract, which was a Unit Price contract, consisted of approximately 246 different items of work at a total contract price of approximately $24,000,000.00. (Def's. 56.1 Stmnt ¶ 1; Rossi Aff. ¶ 5; Silbert Aff. ¶ 3). Aetna furnished payment and performance bonds on behalf of the general contractor, Perez, in connection with the project. (Def's. 56.1 Stmnt ¶ 3; Silbert Aff. ¶ 4).
Citations to "Defs.' 56.1 Stmnt" refer to paragraphs in the Statement of Material Facts pursuant to Local Rule 56.1(a), submitted by the City in support of its motion for summary judgment. Citations to "Rossi Aff." refer to the March 15, 2002 Affirmation of Thomas J. Rossi, Esq., submitted by Aetna in opposition to the motion for summary judgment. Citations to "Silbert Aff." refer to the January 14, 2002 Affidavit of Louis Silbert, P.E. in support of DCR Trucking's Motion to Amend.
Perez entered into a subcontract with DCR Trucking to perform 22 items of work in connection with the Contract, including the removal and replacement of curbs along 14th Street. (Def's. 56.1 Stmnt ¶ 2; Rossi Aff. ¶ 6; Silbert Aff. ¶ 5). During the course of construction, it was determined that in order to install the new granite curbing and sidewalks, certain concrete sidewalks around existing private vaults along 14th Street had to be removed. (Rossi Aff. ¶¶ 7-8; Silbert Aff. ¶ 6). In order to prevent damage to the vaults and to protect the waterproofing membrane surrounding the vaults, removal of the sidewalks had to be done by hand rather than through the use of more cost-effective heavy machinery. (Rossi Aff. ¶ 8; Silbert Aff. ¶ 6).
There was, however, no provision in the Contract to cover the cost of removing these sidewalks. (Rossi Aff. ¶ 7; Silbert Aff. ¶ 8). Thus, in recognition of the added cost, the NYCDOT issued Change Order 51-91M at the maximum price of $756,866.00 to cover sidewalk removal only over the private vaults. (Def's. 56.1 Stmnt ¶ 5; Rossi Aff. ¶ 9; Silbert Aff. ¶ 12). The Change Order, which was submitted to NYCDOT on July 25, 1991, recommended compensation on a time and material basis, pursuant to Article 26 of the Contract. (Def's. 56.1 Stmnt ¶ 8; Rossi Aff. ¶ 9; Silbert Aff. ¶ 11). Pursuant to Article 28, the contractor is required to obtain the signature of the City's resident engineer on site, verifying, on a daily basis, the time and materials used for the work performed. (Def's. 56.1 Stmnt ¶ 6; Rossi Aff. ¶ 9).
Perez performed the sidewalk removal work, maintained the required records and received payment for the work performed under Change Order 51-91M. (Rossi Aff. ¶ 10; Silbert Aff. ¶ 14). The City contends, however, that the invoices submitted by DCR Trucking did not conform to the requirements of the Contract in that they were created months after the work was performed and failed to contain the necessary information required by the Contract. The invoices also were not signed by any City employee as required by the Contract. (Def's. 56.1 Stmnt ¶¶ 9-11).
There appears to be some question as to exactly how much Perez received in payment under the Change Order. Compare Rossi Aff. ¶ 10 (stating that Perez was paid $255,000 for the extra work), with Silbert Aff. ¶ 14 (stating that Perez was paid $390,000 on account of the Change Order work).
According to Aetna, a second problem occurred when the New York City Transit Authority (the "Transit Authority") ordered DCR Trucking to halt its curb removal around Transit Authority facilities, including subway entrances and ventilation shafts located along 14th Street, because the waterproofing bond surrounding these facilities was being damaged in the removal process. (Rossi Aff. ¶¶ 11-12). After the Transit Authority's contract inspector issued the order to DCR Trucking to stop the work, it was decided that DCR Trucking would use the same method of curb removal around Transit Authority facilities as was being utilized under Change Order 51-91M. (Id. ¶ 13).
There is no dispute that DCR Trucking performed the work necessary to remove the curbs around the Transit Authority facilities and that the extra work required to perform the removal with special care was not covered by the Contract. The City, however, refused to pay Perez for this work and, as a consequence, Perez has not paid DCR Trucking. (Id. ¶¶ 14-15).
DCR Trucking initially filed suit against Aetna seeking payment for the extra work performed based on the performance bonds issued by Aetna to Perez, the General Contractor. Aetna then filed a third party action against the City for indemnification on any amounts awarded to DCR Trucking.
The City contends that DCR Trucking is bound by the terms of the Contract that require detailed time records of extra work performed to be signed on a daily basis by the NYCDOT resident engineer. (Id. ¶ 15). Aetna, however, points to the testimony of John Pusz, now Assistant Commissioner for Infrastructure of the New York City Department of Design and Construction, who was employed in October 1991 as the NYCDOT Borough Engineer in Brooklyn. (Dec. 4, 2000 Pusz Dep. Tr. at 13-14, Ex. 5 to Aetna's moving papers). In his deposition, Mr. Pusz testified that before he became Administrative Project Engineer in October 1991, the City's resident engineer was not authorized to sign DCR Trucking's time and material records for the extra work being performed in the removal of curbs around Transit Authority facilities because Change Order 51-91M did not cover that work; it covered only the work of removal around the private vaults. (Id. at 19-20). According to Mr. Pusz, an informal agreement was reached in October 1991, in which it was agreed that the work performed by DCR Trucking around Transit Authority facilities would be covered under Change Order 51-91M. (Id.) However, since most of the extra work was done prior to October 1991, none of those daily time records have been signed. (Rossi Aff. ¶ 19).
DISCUSSION
A. The City's Motion for Summary Judgment
The City moves for summary judgment seeking dismissal of Aetna's claims for indemnification on two grounds: 1) Aetna's lack of privity with the City prevents it from recovering for an alleged breach of the Contract between the City and Perez; and 2) DCR Trucking's failure to comply with the terms of the Contract requiring the submission of daily time records precludes Aetna's recovery on an indemnification claim against the City.
1. Summary Judgment Standards
It is well settled that a party moving for summary judgment has the burden of establishing that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986);Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990). Since summary judgment is an extreme remedy, cutting off the rights of the non-moving party to present a case to the jury, see Egelston v. State Univ. Coll. at Geneseo, 535 F.2d 752, 754 (2d Cir.1976); Gibralter v. City of New York, 612 F. Supp. 125, 133-34 (E.D.N.Y.1985), the court should not grant summary judgment unless it is clear that all of the elements have been satisfied. See Auletta v. Tully, 576 F. Supp. 191, 194 (N.D.N. Y.1983),aff'd, 732 F.2d 142 (2d Cir.1984). In addition, "'the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
Once the moving party discharges its burden of proof under Rule 56(c) of the Federal Rules of Civil Procedure, the party opposing summary judgment "has the burden of coming forward with 'specific facts showing that there is a genuine issue for trial.'" Phillips v. Kidder, Peabody Co., 782 F. Supp. 854, 858 (S.D.N.Y.1991) (quoting Fed.R.Civ.P. 56(e)). Rule 56(e) "provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading." Anderson v. Liberty Lobby, Inc., 477 U.S. at 256. "The non-movant cannot 'escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts,' . . . or defeat the motion through 'mere speculation or conjecture.'" Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990) (citations omitted). Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48. In reversing a grant of summary judgment, the Second Circuit noted that the "[t]rial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them."Quaratino v. Tiffany Co., 71 F.3d 58, 65 (2d Cir.1995) (quotingGallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir.1994)).
2. Lack of Privity
The City first contends that, in the absence of privity, Aetna may not recover under the Contract between the City and Perez.
Under a construction contractor's performance bond, a surety guaranties to the project owner that if the contractor defaults, the project will be completed. Aetna Cas. Sur. Co. v. Manganiello, 1989 U.S. Dist. LEXIS 15122 at *6-7 (S.D.N.Y. Dec. 19, 1989); Aetna Cas. Sur. Co. v. U.S., 845 F.2d 971, 973-74 (Fed. Cir.1988); see Cataract Disposal, Inc. v. Town Bd. of Newfane, 53 N.Y.2d 266, 271, 423 N.E.2d 390, 393, 440 N.Y.S.2d 913, 916 (1981). Under a construction contractor's payment bond, the surety guarantees payment to various creditors that costs associated with the project will be paid. See S.D.I. Corp. v. Fireman's Fund Ins. Cos., 208 A.D.2d 706, 617 N.Y.S.2d 790 (2d Dep't 1994); Elmohar Co. v. People's Sur. Co., 217 N.Y. 289, 293, 111 N.E. 821 (1916). Thus, applying the law to this case, the City is the intended beneficiary of Aetna's performance bond and the subcontractors and suppliers of materials are the intended beneficiaries under the payment bond. See Novak Co., Inc. v. Travelers Indem. Co., 85 Misc.2d 957, 959, 381 N.Y.S.2d 646, 649 (1976) (quoting Extruded Louver Corp. v. McNulty, 34 Misc.2d 566, 569, 226 N.Y.S.2d 220, 224 (1962), rev'd on other grounds, 18 A.D.2d 661, 234 N.Y.S.2d 902 (1962)).
New York law provides that in the context of a surety agreement, the original contract is incorporated by reference into the surety bond and the two contracts are construed together in order to determine the surety's duty under the bond. See Hunt v. Bankers Shippers Ins. Co., 60 A.D.2d 781, 783, 400 N.Y.S.2d 645, 647 (4th Dep't 1977); Hall Co. v. Continental Cas. Co., 34 A.D.2d 1028, 1029, 310 N.Y.S.2d 950, 952 (3d Dep't 1970), aff'd, 30 N.Y.2d 517, 280 N.E.2d 890, 330 N.Y.S.2d 64 (1972). Thus, "[u]nder New York law a surety's duty generally is coextensive with that of the principal on the bond." West-Fair Elec. Contractors v. Aetna Cas. Sur. Co., 49 F.3d 48, 50 (2d Cir.1995) (citations omitted).
The City argues, however, that it is not bound as a promisor to Aetna under the surety agreement, simply because the terms and conditions of the Contract are incorporated by reference into the surety agreement between Aetna and Perez. (City's Mem. of Law at 5) (citing Lodges 743 1746, Int'l Ass'n of Machinists Aerospace Workers v. United Aircraft, 534 F.2d 422, 441 (2d Cir. 1975), cert. denied, 429 U.S. 825 (1976)). Instead, the City argues that because Aetna is not in privity with Perez and the parties never intended Aetna to be a third-party beneficiary to the City's contract with Perez, Aetna cannot seek indemnification from the City.
The City's argument ignores the well-established rule under New York law that in a suit for breach of contract, a guarantor or a surety is entitled to assert any defense or raise any counterclaims that would be available to the principal obligor. See Durable Group, Inc. v. De Benedetto, 85 A.D.2d 524, 444 N.Y.S.2d 662 (1st Dep't 1981) (mem.) (citing Walcott v. Clevite Corp., 13 N.Y.2d 48, 56, 191 N.E.2d 894, 241 N.Y.S.2d 834 (1963); accord, U.S. v. Glens Falls Ins. Co., 534 F. Supp. 109 (N.D.N.Y.1981) (holding that the right of the surety to assert a defense or raise claims of a contractor has been judicially recognized and citing Am. Sur. Co. of N.Y. v. U.S., 317 F.2d 652 (8th Cir.1963)). The exercise of the surety's right to assert a defense or claim is contingent upon the consent of the principal obligor or contractor. U.S. v. Glens Falls Ins. Co., 534 F. Supp. at 111.
In this instance, Perez has not only consented to Aetna's proceeding on the counterclaims against the City in the action, but, according to Aetna, is funding the defense. (Aetna's Memorandum of Law in Opposition ("Aetna Mem.") at 5). Under these circumstances, the absence of privity does not preclude Aetna from proceeding on its counterclaim against the City for indemnification. Thus, on the first ground raised by the City, it is respectfully recommended that the City's motion for summary judgment be denied.
3. Waiver
The City also moves for summary judgment, arguing that DCR Trucking's failure to comply with its obligations under the Contract to furnish daily time and material records to the City constitutes a waiver of DCR Trucking's claim for extra work. The City contends that as a third-party defendant, it is entitled to raise this as a defense to Aetna's claims for indemnification.
Article 25 of the City's Contract with Perez deals with extra work and provides in relevant part:
Extra Work. This contract may be modified or changed by the Commissioner from time to time, in a manner not materially affecting the substance thereof. . . . An order for extra work shall designate the method of payment therefor, and shall be valid only if issued in writing and signed by the Commissioner.
(Ex. 25 to Plaintiff's Memorandum in Opposition to Motion for Summary Judgment In Support of Cross-Motion ("Pl.Mem.")).
Article 28 of the Contract further requires that when performing extra work under Article 25, the Contractor "shall furnish the Resident Engineer daily with three copies of written statements signed by the Contractor's representatives at the site," designating the names and number of men, the hours worked, the nature and quantity of materials and equipment used, and the character of the work performed. (Art. 28, Ex. 25 to Pl. Mem.). The Contract clearly provides: "Failure to comply strictly with these requirements shall constitute a waiver of any claim for extra compensation" for such work. (Id.) Finally, Article 54 of the Contract precludes a claim against the City for breach of contract or for extra work unless the Contractor strictly complied with "all requirements relating to the giving of notice and of information with respect to such claims." (Art. 54, reproduced in Third Party Defendant City of New York's Memorandum of Law in Support of Motion for Summary Judgment ("City Mem.") at 7-8).
The City contends that these notice provisions are designed to permit the verification of any alleged damages, see, e.g., De Foe Corp. v. City of N.Y., 95 A.D.2d 793, 794, 463 N.Y.S.2d 508, 510 (2d Dep't 1983), appeal dismissed, 66 N.Y.2d 759, 497 N.Y.S.2d 1028 (1985), and to allow for the mitigation of damages. See Naclerio Contracting Co., Inc. v. E.P.A., 113 A.D.2d 707, 710, 493 N.Y.S.2d 159, 161 (1st Dep't 1985). Failure to strictly comply with contractual notice and documentation provisions has been held to constitute a waiver of any claim for damages.See, e.g., MRW Constr. Co., Inc. v. City of New York, 223 A.D.2d 473, 636 N.Y.S.2d 344 (1st Dep't 1996); Lasker-Goldman Corp. v. City of New York, 221 A.D.2d 153, 154, 633 N.Y.S.2d 771, 771-72 (1st Dep't 1995).
Here, the City argues that DCR Trucking failed to comply with the Contract in that daily records were not properly prepared and submitted as required by the Contract, nor were they signed by the City's Resident Engineer. Instead, DCR Trucking's first and second set of invoices lacked the names and number of workmen who performed the work. (Ex. H to City Mem.). The third set, which was created months after the work was completed, still failed to comply with the requirement that the City's Resident Engineer review and sign off on the work. (Ex. F to City Mem. at 39-41). Accordingly, the City argues that DCR Trucking's failure to comply with these requirements constitutes a waiver of its right to sue for compensation for this work.
Both Aetna and DCR Trucking oppose the City's motion for summary judgment, contending that there was no waiver, but rather, that the City's own actions prevented Perez and DCR Trucking from complying with these contractual provisions. Indeed, the parties dispute the reasons for DCR Trucking's failure to submit records signed by the Resident Engineer as required by the Contract. Aetna and DCR Trucking contend that the City has, over time, taken different positions as to why the City would not pay for the extra work to remove the curbing in the vicinity of Transit Authority facilities. (Rossi Aff. ¶¶ 5-6; Pl. Mem. at 1-2). Although the City now contends that it was DCR Trucking's failure to obtain the signature of the City's Resident Engineer, Aetna and DCR Trucking point to the testimony of Mr. Pusz to argue that the City refused to authorize the Resident Engineer to sign the daily time records for this work. (Rossi Aff. ¶ 5; Pl. Mem. at 14). Specifically, with respect to DCR Trucking's failure to obtain the signature of the Resident Engineer, the City's own witness, Mr. Pusz, clearly testified that until October 1991, the Resident Engineer was not authorized by the City to sign the time sheets submitted by DCR Trucking for the extra work performed around Transit Authority facilities. (Id.)
It is clear that where a party has, by its own actions, frustrated or precluded compliance with another party's performance of a condition precedent, the first party cannot rely on the other's failure to perform as a defense to an action to enforce the contract. See Arc Elec. Const. Co. v. George A. Fuller Co., 24 N.Y.2d 99, 103-04, 247 N.E.2d 111, 113, 299 N.Y.S.2d 129, 132-33 (1969); A-1 General Contracting Co. v. River Market Commodities, Inc., 212 A.D.2d 897, 900, 622 N.Y.S.2d 378, 381, 622 N.Y.S.2d 378 (3d Dep't 1995). As the court in A.H.A. Gen. Constr., Inc. v. N.Y.C. Hous. Auth., noted:
A condition precedent is linked to the implied obligation of a party not to do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. . . . Thus, it is a well-settled and salutary rule that a party cannot insist upon a condition precedent, when its non-performance has been caused by himself.92 N.Y.2d 20, 699 N.E.2d 368, 677 N.Y.S.2d 9 (1998) (internal citations omitted).
Moreover, Aetna and DCR Trucking contend that the City originally took the position that any contract change work done to repair Transit Authority facilities below 14th Street was not compensable because it was not work done to improve City-owned facilities. Apart from the fact that this position is legally indefensible and cases have held that the City is responsible for any costs incurred to repair damage caused to subway facilities in the course of roadway construction, see New York Elec. Lines Co. v. Empire City Subway Co., 235 U.S. 179, 192 (1914); City of New York v. Consolidated Edison Co. of N.Y., Inc., 274 A.D.2d 189, 191, 713 N.Y.S.2d 40, 42 (1st Dep't 2000), the City's argument is somewhat disingenuous. In this case, the City issued Change Order 91-51M to compensate for special work done to protect privately-owned facilities, even though that special work done pursuant to Change Order 91-51M was clearly not done for the benefit of City-owned facilities. Morever, Aetna and DCR Trucking point out that when the City initially rejected DCR Trucking's time sheets for this work, the City informed Perez that the time sheets were being rejected because they were not signed by the Transit Authority's representative. However, not only is there no provision in the Contract authorizing Transit Authority inspectors to sign off on work tickets, but the Transit Authority representative testified that he would not have been authorized to sign these time sheets even if requested. (Ex. 5 to Pl. Mem. at 19-20).
Given that there does not appear to be any dispute that DCR Trucking performed certain extra work surrounding the Transit Authority facilities, and there is a material dispute as to whether the City's own actions prevented DCR Trucking from complying with the Contract, it is respectfully recommended that the City's motion for summary judgment be denied in its entirety.
B. DCR Trucking's Motion To Amend
DCR Trucking moves to amend its complaint to increase its ad damnum amount to $323,576.00, based on estimates of the fair value of all of the special care work performed by DCR Trucking. These estimates were prepared by Louis Silbert, a professional engineer and former claims engineer for the City Comptroller's Office.
A. Rule 15(a) Standards
As a general matter, Rule 15(a) of the Federal Rules of Civil Procedure provides that an amendment as of right may be made at any time prior to the service of a responsive pleading. Otherwise, a party may amend a pleading "only by leave of court or by written consent of the adverse party." Fed.R.Civ.P. 15(a). However, the Rule also states that "leave shall be freely given when justice so requires," Fed.R.Civ.P. 15(a), and the Rule has been liberally construed. See Foman v. Davis, 371 U.S. 178, 182 (1962). As the court in Monahan v. N.Y. City Dep't of Corrections, noted, "The Rule reflects two of the most important principles behind the Federal Rules: pleadings are to serve the limited role of providing the opposing party with notice of the claim or defense to be litigated . . . and 'mere technicalities' should not prevent cases from being decided on the merits." 214 F.3d 275, 283 (2d Cir. 2000), cert. denied, 531 U.S. 1035 (2000) (internal citation omitted). See also Chapman v. YMCA of Greater Buffalo, 161 F.R.D. 21, 24 (W.D.N.Y.1995) (noting, "[T]he stated purpose of Rule 15 is to allow a party to correct an error that might otherwise prevent the court from hearing the merits of the claim").
Although leave to amend "shall be freely given when justice so requires," Fed.R.Civ.P. 15(a), the decision whether to grant a motion to file an amended pleading remains within the court's discretion, see Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995), and an amendment should not be allowed where there has been bad faith or dilatory motive or where the amendment would be futile or would cause undue delay or undue prejudice to the opposing party. See Foman v. Davis, 371 U.S. at 182; Local 802, Assoc. Musicians of Greater N.Y. v. Parker Meridien Hotel, 145 F.3d 85, 89 (2d Cir.1998); Zahra v. Town of Southold, 48 F.3d at 685; John Hancock Mut. Life Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir.1994); Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir.1993); Leonelli v. Pennwalt Corp., 887 F.2d 1195, 1198 (2d Cir.1989). It is clear that "the grant or denial of an opportunity to amend [remains] within the discretion of the District Court," Foman v. Davis, 371 U.S. at 182, "but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules." Id. "The party opposing the motion for leave to amend has the burden of establishing that an amendment would be prejudicial." Fariello v. Campbell, 860 F. Supp. 54, 70 (E.D.N.Y. 1994) (citing Panzella v. Skou, 471 F. Supp. 303, 305 (S.D.N.Y. 1979)).
2. Application
Aetna, without admitting that any amounts are due to DCR Trucking, has acknowledged in its papers that amendments such as the one sought here are freely given, and therefore, Aetna has not addressed nor does it appear to oppose DCR Trucking's motion to amend. The City also has not addressed DCR Trucking's motion to amend.
Accordingly, considering that leave to amend is to be freely given in the interests of justice and there is no claim here that the proposed amendment would prejudice the other parties, it is respectfully recommended that DCR Trucking's motion to amend be granted.
CONCLUSION
Accordingly, for the reasons set forth herein, it is respectfully recommended that the City's motion for summary judgment be denied and that plaintiff's motion to amend be granted.
Any objections to this Report and Recommendation must be filed with the Clerk of the Court, with a copy to the undersigned, within ten (10) days of receipt of this Report. Failure to file objections within the specified time waives the right to appeal the District Court's order. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72; Small v. Secretary of Health and Human Servs., 892 F.2d 15, 16 (2d Cir.1989).
The Clerk is directed to mail copies of this Report and Recommendation to the parties.
SO ORDERED.