Opinion
104341/02.
Decided June 14, 2004.
This action and third-party action arise from the design and construction of a multi-storied bus depot located on 100th Street in Manhattan (the Project), owned and operated by the New York City Transit Authority (the NYCTA). Plaintiff Metropolitan Steel Industries, Inc. d/b/a Steelco (Steelco) initiated this action against defendant/third-party plaintiff Perini Corporation (Perini) and its sureties for breach of contract, seeking to recover the unpaid balance due on its contract, as well as certain additional and extra work it rendered in connection with the Project.
Steelco now moves for severance of the third-party action from the main action, on the ground that it will be prejudiced if the third-party action is tried together with the main action, CPLR 603. Steelco also moves for partial summary judgment on the issue of liability with respect to certain allegedly undisputed change orders.
Perini cross-moves for an order consolidating this action with a related action commenced by it in the Supreme Court, Westchester County against WDF, Inc., which arises out of the same construction project, and removing that action to this Court, CPLR 602.
Third-party defendant STV, Incorporated, cross-moves for partial summary judgment dismissing Perini's first, second, third, fourth and sixth causes of action for contribution and indemnification, and portions of its seventh and eighth causes of action, which allege the existence of a prior oral agreement.
As set forth below, Steelco's motion to sever and for partial summary judgment is denied. Perini's cross motion for consolidation and STV's cross motion for partial summary judgment are both granted.
FACTS
Steelco specializes in furnishing, fabricating, and erecting structural steel. Perini is a construction contractor which provides general construction, management, and design/build services throughout the United States and abroad. STV is an engineering and architectural firm which provided design services to Perini in connection with the Project.
In August 1999, the NYCTA solicited responses from contractors to a Request for Proposals No. C40412 (the RFP), relating to the eventual award of a contract which required the constructor to complete the design and perform the construction of the bus depot as the designer/builder.
STV — Perini Prime Contract :
Perini was the successful builder on the Project. On May 1, 2000, it entered into a contract with the NYCTA for the design and construction of the Project (the Prime Contract). Pursuant to the Prime Contract, Perini agreed to complete the Project for the lump sum price of $88,728,800. The Prime Contract provided that the Project was to be advanced to final design by Perini's application of the specified standard of care to the design and construction. The Prime Contract also provided that Perini was responsible for all work, design, materials, and equipment reasonably inferred from the contract documents to complete the Project ( see Prime Contract, Special Conditions SC6a). Pursuant to the Prime Contract, STV was designated as the Project's "Design Professional." In that capacity, and pursuant to a written agreement between Perini and STV, STV was responsible for the Project's design.
Perini — STV Subcontract :
Perini and STV entered into a subcontract on May 1, 2000, pursuant to which STV was to provide engineering and design services to Perini in accordance with the Prime Contract, in consideration of $3,200,000 (the Professional Services Agreement). The Professional Services Agreement provided, among other things, that (1) STV was required to review, check, and advance the NYCTA's preliminary drawings to completed status; and (2) STV's design was subject to Perini's revisions and directions (Professional Services Agreement §§ 2.2; 2.13). The Professional Services Agreement further provided certain target dates, by which STV was to provide Perini with critical design drawings for bidding and construction.
Perini — Steelco Subcontract :
On August 30, 2000, Perini entered into a subcontract with Steelco, pursuant to which Steelco was to furnish certain work, labor, material, services, and equipment for the fabrication and erection of structural steel and a metal deck necessary for construction of the Project, for a price of $9,630,000 (the Steelco Subcontract).
The Steelco Subcontract expressly incorporated all applicable provisions of the Prime Contract (Steelco Subcontract, § 1.2). With respect to compensation for extra work, the Prime Contract provides that:
All submittals and/or requests by Contractor, on behalf of itself and any Subcontractor or Suppliers, in connection with requests for extension of time, compensation for Extra Work or claims submitted in accordance with [Prime Contract] Article 8.03, shall be made in good faith, and with full, accurate, and complete supporting documentation.
* * *
Any request for an extension of time or monetary compensation, whether for Extra Work in settlement of a claim, must be submitted with adequate supporting documentation. Any deliberate failure or refusal on the Contractor's part to provide adequate supporting documentation accompanying a submittal shall be deemed to be an act of bad faith on the part of the Contractor.
Prime Contract, Article 1.10 (a-c). The Prime Contract also contained: (1) an exculpatory provision that severely limited claims for delay damages; (2) a default provision; and (3) a dispute provision, pursuant to which all parties agreed that the Chief Engineer's determination of any claim or dispute would be final and binding ( see Prime Contract, Article 2.07; Article 7; Article 8.03).
In the Steelco Subcontract, Steelco expressly acknowledged that it understood that, due to the design/build nature of the Project, redesign changes might occur which would increase Steelco's costs. Regarding changes in Steelco's scope of work, the Steelco Subcontract provides:
[Perini] may, by written order, make changes in the work to be performed by [Steelco] within the scope of this Subcontract Agreement, the Prime Contract, or as required by the Owner. No changes shall be made in this Subcontract or the work except upon such written order. . . . The procedures for administering changes shall be as set forth in the Contract Documents.
Steelco Subcontract, § 7. In such event, a procedure was set forth in Section 10 of the Steelco Subcontract, for the determination of Steelco's additional compensation.
The Steelco Subcontract also addressed the issue of Steelco's termination for cause, and provides that:
If [Perini] so terminates [for cause] the employment of [Steelco], [Steelco] shall not be entitled to any further payments under this agreement until [Steelco's] work has been completed and accepted by Owner, and payment has been received by [Perini] from Owner with respect thereto.
Id., § 9.3
The Steelco Subcontract further provides that (1) Steelco would not be "entitled to any extra compensation for any suspension, delay or acceleration not specifically allowed and paid for by [the NYCTA]" ( id., § 4.2); and that (2) Perini was entitled to make changes in the work to be performed by Steelco within the scope of the subcontract ( id., § 7.1).
The work under the Prime Contract between Perini and the NYCTA was plagued by various problems. Some were attributable to design changes made at the direction of the NYCTA, after Perini and STV alerted the NYCTA that its RFP was not compliant with New York City Local Law 17. Other design modifications were attributable to the fast-track schedule of the Project.
Steelco commenced work on the Project in August 2000. By September 2000, Steelco began sending correspondence to Perini, in which Steelco complained that STV was not providing accurate structural steel designs and that, as a result, Steelco's work was being delayed. Steelco advised Perini that it would hold it liable for costs incurred as a result of the delay.
Steelco also alleged that its work was being impacted by other elements of the Project. Specifically, it asserted that the installation of the boilers in the cellar was to be completed before it commenced its work, so that proper decking on the mezzanine level would be in place. Because this work, which was subcontracted to WDF, Inc., was not completed as scheduled, Steelco asserted that it had incurred additional costs for which Perini was liable.
In addition, as anticipated in the Steelco Subcontract, certain design changes were made which impacted upon Steelco's performance. Steelco asserts that it was compelled to perform additional work for which it is entitled to be paid.
In March 2001, Steelco commenced erection of the structural steel. On November 15, 2001, Perini terminated Steelco, and completed all of Steelco's remaining work. To date, Perini has paid Steelco $10,700,000.
The Steelco Complaint :
Steelco commenced this action against Perini and sureties, seeking contract damages arising from Perini's claimed failure to make payments in accordance with the Steelco Subcontract. The complaint asserts a breach of contract claim for approximately 40 change orders prepared by it during its work, which it alleges have an aggregate value of approximately $4,500,000. These change orders are categorized into two groups: (1) change orders for additional work allegedly performed by Steelco, with an aggregate value of approximately $2,400,000; and (2) charges for delay damages, which Steelco values at approximately $2,100,000.
The essence of Steelco's claim for delay damages is grounded on the contention that, during the performance of the Subcontract, Perini was responsible for "inappropriate acts, omissions, delays and interferences" which "substantially altered, changed, modified and interfered with [its work] causing delay, inefficiency and additional cost to plaintiff in the performance of the work" (Complaint, ¶ 14).
Perini's Third Party Action Against STV :
Thereafter, Perini commenced the third-party action against STV. The amended third-party complaint contains eight causes of action, and seeks damages in excess of $11,000,000. In the seventh and eighth causes of action Perini alleges that information and design drawings purportedly provided to it by STV during both the proposal and design phase were erroneous and constituted a breach of the Professional Services Agreement, as well as a breach of the independent duty of care that STV owed Perini based upon STV's status as a professional engineer. The amended complaint also contains claims of indemnification and contribution.
In its allegations of fact, Perini generally asserts that, prior to the date of the Professional Services Agreement, STV provided it with "certain information" upon which Perini relied in preparing its proposal to the NYCTA (Amended Third-Party Complaint, ¶ 4). Perini also alleges that STV failed to alert Perini to the possibility of potential "code violations, cost over-runs or the necessity of increasing the emergency generator capacity" ( id., ¶ 11). It also generally asserts that the final drawings prepared by STV contained errors regarding fans, ductwork, masonry, curtain wall fireproofing and "other construction items" ( id., ¶ 15).
In its answer, STV asserts five counterclaims. In the first through third, it alleges that Perini misrepresented the scope of work that STV would have to perform, and seeks damages of $3,875,000. In the fourth, STV asserts that Perini wrongfully withheld payment with respect to four approved change orders of $283,400. In the fifth, STV alleges that Perini wrongfully withheld payment with respect to 10 change orders, in the amount of $170,115.
DISCUSSION
I. Steelco's Motion for Severance
Steelco seeks to sever the third-party action from the main action.
Steelco contends that its claims against Perini are limited to a finite portion of the Project, and that the third-party action encompasses a broader spectrum of the work. Thus, Steelco asserts, it is entitled to severance because the issues raised in the complaint are not "inextricably intertwined" with the issues raised in the third-party action. Neither CPLR 603, nor the case law cited by Steelco, supports the application of this standard. Rather, in determining whether to exercise their discretion pursuant CPLR 603, courts focus on the lack of common factual and legal questions ( see 17 Vista Fee Assocs. v. Teachers Ins. and Annuity Assn. of America, 226 AD2d 298 [1st Dept 1996]; Weiss v. Meiselman, 155 AD2d 531 [2nd Dept 1989]). A comparison of the facts and issues relevant to this action and the third-party action demonstrate that there are common facts and legal issues, and that the required standard for granting severance has not been met.
Both the complaint and the third-party complaint are based on various facets of the Project. Although Steelco contends that its claims against Perini are limited to a finite portion of the Project that are completely unrelated to the work performed by STV, it is clear that Steelco's work was an integral part of the overall project the fabrication of the steel superstructure, the on-site erection of all of the structural steel for the facility, and the furnishing and installation of all the metal decking and other related work. Moreover, Steelco's claims are largely based on changes and revisions to the steel structural designs. Steelco's claims regarding these design revisions are related to the issues raised in the third-party action, in which Perini asserts that design drawings provided to it by STV were erroneous, and constituted a breach of the Professional Services Agreement.
In addition, the claims in the Steelco complaint and the third-party complaint involve identical parties Steelco, Perini, and STV. Steelco's claims are primarily based upon changes and revisions made to the steel structural designs. The relevant Steelco project correspondence demonstrates that STV was a major source of these alleged revisions. In addition, one of the factual predicates to STV's counterclaims against Perini is the allegation that STV is entitled to additional compensation because Steelco and its sub-subcontractors, as well as other subcontractors, negligently prepared shop drawings requiring STV to perform additional work ( see STV Answer to Amended Third-Party Complaint, ¶ 101). Accordingly, many of the same witnesses that will need to testify at any trial regarding the Steelco complaint would also have to testify at a trial regarding the third-party action.
Steelco's assertion that it would be prejudiced by having to engage in expanded discovery on matters not related to Steelco, and participate in a protracted trial, is unfounded. Except for depositions, much of the discovery has already been conducted. If Steelco believes that the remaining discovery is unrelated to its claims, it need not participate in such discovery. Moreover, as set forth below, several of Perini's third-party claims against STV are being dismissed on summary judgment, which will reduce the amount of remaining discovery, as well as the length of the trial. Finally, Steelco's assertion that it would take only a week to try its case is directly refuted by its own complaint, in which it asserts over 40 individual claims, all of which have been denied.
"It is preferable to try related actions together, in order to avoid a waste of judicial resources and the risk of inconsistent verdicts" ( Williams v. Property Services, LLC, 6 AD3d 255 [1st Dept 2004], citing Rothstein v. Milleridge Inn, Inc., 251 AD2d 154 [1st Dept 1998]). Here, the main action and third-party action are clearly related, as they arise from a common nucleus of facts ( see Sichel v. Community Synagogue, 256 AD2d 276 [1st Dept 1998]), and will likely require almost the same list of witnesses ( Andresakis v. Lynn, 236 AD2d 252 [1st Dept 1997]). Steelco has failed to demonstrate prejudice to a substantial right in the absence of severance of these claims ( id.), and the interests of judicial economy and consistency will be served by continued consolidation of the matters ( see Shanley v. Callanan Indus., Inc., 54 NY2d 52). Accordingly, Steelco's motion for severance is denied ( Williams v. Property Services, LLC, 774 NYS2d 698, supra; Ingoglia v. Leshaj, 1 AD3d 482 [2nd Dept 2003], lv denied 2 NY3d 705). Notwithstanding the above, the Court, if appropriate, may revisit the issue of severance in the future.
II. Steelco's Motion for Partial Summary Judgment
Steelco moves for: (1) partial summary judgment on the issue of liability with respect to certain allegedly undisputed change orders; and (2) severance of any claims for which it is granted partial summary judgment, CPLR 3212 (e) (1).
In its complaint, Steelco alleges that, during the course of the Project, it incurred additional expense, and is entitled to additional compensation, on account of design changes that significantly altered, changed and modified its performance, thereby causing delay, inefficiency, and additional cost to it. Steelco further alleges that it has performed the extra work, but that Perini has refused to pay it for the extra work, and other damages it suffered.
In support of its said motion, Steelco contends that a simple reading of the pleadings establishes that no material issue of fact exists as to its entitlement to be paid for the extra work it performed. Steelco asserts that, in its complaint, it detailed the requests for change orders, designated as X-1 through X-40, the work performed, and the amount of additional compensation owed as a result thereof. It further asserts that Perini in its answer admits that changes were made to the scope of the subcontract, and that Steelco performed the additional work identified in 28 of the 40 change orders. Steelco concludes that it is entitled to partial summary judgment as to liability for each of the proposed change orders that have been specifically admitted by Perini in its answer.
As the party seeking summary judgment, Steelco has the burden of demonstrating the absence of genuine issues of material fact on every relevant issue raised by the pleadings, including any affirmative defenses raised in Perini's answer ( see Sokolow, Dunaud, Mercadier Carreras LLP v. Lacher, 299 AD2d 64 [1st Dept 2002]). Steelco has failed to meet this burden, and thus, its motion for partial summary judgment is denied.
Steelco's motion for partial summary judgment is entirely based on the Steelco complaint and Perini's answer. These two pleadings, however, fail to demonstrate Steelco's prima facie entitlement to summary judgment on the issue of liability for the claims in question. Perini's answer cannot reasonably be construed as an unqualified admission that Perini directed Steelco to perform extra work, that Steelco duly performed and completed the extra work it was directed to perform, that Perini approved the extra work, and that Steelco is entitled to additional compensation on account of the extra work it performed. An examination of the complaint, and the corresponding allegations in the answer, demonstrates that, although Perini does not dispute that changes were made to the scope of Steelco's work, Perini denies (1) Steelco's categorization of each item of extra work; (2) that Perini issued the revised drawings; (3) that Perini directed Steelco to perform the extra work; and (4) that Steelco duly completed such work. Accordingly, Steelco has failed to satisfy its evidentiary burden for the relief requested.
In the complaint, Steelco's claims for additional compensation for each item of additional work are generally asserted in the following boilerplate manner:
Perini issued revised drawings, dated September 1, 2000, which made changes to the work involving extra work and directed Plaintiff to perform said extra work, which for convenience was entitled "X-1";
Plaintiff, when permitted and directed by Perini, entered upon the performance of said extra work and completed said extra work entitled "X-1"; The fair and reasonable value of the said extra work entitled "X-1" was $100,955; and
Plaintiff demanded payment of said amount from Perini for said extra work entitled "X-1" but Perini wrongfully refused and neglected to pay Plaintiff the aforesaid amount, except approved payment of the sum of $88,471, leaving a balance unpaid of $12,484.
Complaint, ¶¶ 16-19.
Following the boilerplate allegations of the complaint regarding the claims for additional work and delay damages, Perini, in its answer, generally responded in the following manner:
[Perini admits] that changes were made to the scope of work of the Subcontract, some of which were included within the Steelco change order request X-1. Except as specifically admitted [Perini denies] each and every other allegation;
[Perini admits] that Steelco entered into performance of certain work designated in change order request number X-1. Except as specifically admitted [Perini denies] each and every other allegation;
[Perini denies] the allegations of paragraph 18; and
[Perini denies] the allegations of paragraph 19.
Answer, ¶¶ 16-19 (emphasis added)
It is clear that Perini has not conceded all the allegations of fact that are critical to, and required for, granting Steelco's motion for partial summary judgment.
The denial of Steelco's motion for partial summary judgment is further warranted by the existence of issues of material fact. For example, the Steelco complaint concedes that Steelco was terminated by Perini in November 2003 (Complaint, ¶ 170). Pursuant to the Steelco Subcontract, termination for cause precludes Steelco's entitlement to any further payments whatsoever until such time as (1) the Owner accepts Steelco's work; and (2) Perini receives payment from the Owner for said work (Steelco Subcontract, ¶ 10). Because the satisfaction of these contractual conditions precedent to Steelco's right to payment are not alleged or addressed in the Steelco complaint or in its moving papers, there are additional issues of material fact that preclude the Court from granting partial summary judgment.
In addition, the Steelco Subcontract contains a "no damages for delay" clause. To prevail on its delay claim, Steelco must establish that such damages were caused by Perini's willful misconduct or gross negligence ( A.R. Mack Constr. Co., Inc. v. Central Square Central School Dist., 278 AD2d 839 [4th Dept 2000], lv denied 96 NY2d 712 [holding that delay claims otherwise barred by contract are still viable if party seeking such damages established that they were caused by another party's willful or gross misconduct]; Buckley Co., Inc. v. City of New York, 121 AD2d 933 [1st Dept 1986], appeal dismissed 69 NY2d 742 [same]). Accordingly, whether Perini negligently performed its obligations and, if so, what damages were incurred and by whom as a result thereof, are issues of fact.
Moreover, Perini asserts several affirmative defenses in its counterclaims, none of which are even addressed by Steelco in its motion. These affirmative defenses also raise material issues of fact, requiring denial of the motion, as to whether: (1) Steelco provided the contractually mandated written notice of its claims for damage (Steelco Subcontract, Article 10.4); (2) Steelco duly performed and completed the work for which it claims additional compensation; (3) Steelco satisfied its contractual obligations regarding the exhaustion of the administrative dispute resolution procedures mandated in the contract ( id., Articles 10.1 and 10.2); and (4) the claims asserted in the Steelco complaint are subject to the release and waiver of claims provision set forth in the Steelco Subcontract, which limits Perini's liability to the extent of any additional compensation actually collected by Perini from the NYCTA.
Steelco's request that this Court order Perini to pay copying costs in the amount of $10,811.85 is also denied. This request for relief is procedurally improper, as Steelco failed to include it in the Notice of Motion ( see CPLR 2214 [a]).
III. Perini's Cross Motion to Consolidate
Perini cross moves to consolidate Perini Corp. v. WDF Inc. and Federal Ins. Co., Sup. Ct., Westchester Co., Index No. 12987/2003, which also arises out of the Project, with this Action (Action No. 2).
WDF and Perini entered into a subcontract (the WDF Subcontract), pursuant to which WDF was to furnish and install the mechanical, plumbing, and fire protection systems for the Project. In Action No. 2, Perini seeks the recovery of delay and other damages against WDF. WDF has interposed a counterclaim in which it seeks additional compensation for extra and changed work, and damages for delays that it claims it experienced during project performance as result of alleged changes and revisions made to its scope of work. According to WDF, the delay of the other parties working on the Project, including Steelco, caused it to incur additional costs, which it seeks to recover from Perini. Perini has joined STV as a third-party defendant in Action No. 2, claiming both indemnification and direct damages from STV for its allegedly improper acts and omissions, and professional malpractice.
Both WDF and Steelco oppose consolidation of the two actions. STV does not oppose consolidation of the actions.
Consolidation is generally favored in the interest of judicial economy and ease of decision making where cases present common questions of law and fact, "unless the party opposing the motion demonstrates that consolidation will prejudice a substantial right" ( Amtorg Trading Corp. v. Broadway 56th Street Assocs., 191 AD2d 212, 213 [1st Dept 1993]; accord Raboy v. McCrory Corp., 210 AD2d 145 [1st Dept 1994]; Berman v. Greenwood Village Community Dev., Inc., 156 AD2d 326 [2nd Dept 1989]).
Here, both actions raise common questions of law and fact. Such common issues include the following: (1) both actions arise out of the same construction project; (2) both actions involve subcontractor claims for delay damages and additional costs due to design revisions and changes to their scope of work; (3) the subcontractors' claims are only asserted against Perini, as the general contractor, and against Perini's payment bond surety; and 4) the delay claims asserted by WDF in Action No. 2 implicate, in part, the potential culpability of Steelco for the damages or delay asserted by WDF. Although there is not complete identity of issues between the actions, it is not necessary that all questions of law or fact be common to both actions ( see Fourteen Sharot Place Realty Corp. v. Miceli, 125 AD2d 634 [2nd Dept 1986]; Weiner v. New York Property Ins. Underwriting Assn., 73 AD2d 780 [3rd Dept 1979]).
In construction contract disputes such as the one at bar, consolidation or a joint trial is often warranted, due to the interdependency and relationship of the different construction trades, whose acts and omissions frequently affect the various entities that must coordinate their activities to complete a project ( see Paddock Constr., Ltd. v. Thomason Industries Corp., 133 AD2d 20 [1st Dept 1987]; Chinatown Apartments, Inc. v. New York City Transit Auth., 100 AD2d 824 [1st Dept 1984]; Mideal Homes Corp. v. LC Concrete Work, Inc., 90 AD2d 789 [2nd Dept 1982]).
All the actions arise from the same Project, involve many of the same parties, and contain common issues of law and fact concerning the adequacy of the design and construction of various components of the finished bus depot.
In its opposition, Steelco argues that there is a disparity of common issues between the two actions because, as opposed to WDF, Steelco's claims for $2,000,000 in damages for the purported excessive design revisions to the structural steel drawings for the Project are not delay claims, but merely claims for "inefficiencies involving unnecessary man-hours expended in the steel erection" (1/30/05 Aff. of Shelley Halber, ¶ 5 [iii]). This argument completely lacks merit. Steelco's complaint unequivocally alleges that it is seeking damages from Perini because Perini "interfered" and "delayed" Steelco's work ( see Complaint, ¶¶ 110, 150, 154, and 158); see also Corrino Civetta Constr. Corp. v. City of New York, 67 NY2d 297 [holding that claims for damages regarding inefficiencies constitute delay claims that are subject to a contract's "no damages for delay" provision]; Phoenix Contr. Corp. v. New York City Health and Hospitals Corp., 118 AD2d 477 [1st Dept], appeal denied 68 NY2d 606 [holding that contractor's claim, denominated as breach of contract claim, which sought damages for interference and delay of work, was precluded by "no damages for delay" clause in contract]). It is clear that the claims asserted by both Steelco and WDF raise common issues of law and fact.
WDF's argument that Steelco's work on the Project had virtually no connection to WDF's work is similarly lacking in merit. It is clear that there was a temporal connection between the work performed by both Steelco and WDF. WDF's delay claim against Perini is based on its allegation that "Perini and others for whom Perini is responsible" unreasonably delayed WDF in the performance of its work (WDF Answer, ¶¶ 20 and 21). Moreover, Peter Bandini, WDF's project manager, specifically alleges that Steelco's "work occurred early in the project and had to be substantially completed before WDF's work began" (Bandini Aff., ¶ 3). The record further reveals that Steelco did not complete its work on schedule, and that this delay in performance may have contributed to WDF's delay claims ( see 1/12/04 Aff. of Joseph Ertle, ¶ 10).
Absent a showing of prejudice to a substantial right, the existence of common questions of law or fact justify the grant of a motion for consolidation (CPLR 602[a]; Lamboy v. Inter Fence Co., Inc., 196 AD2d 705 [1st Dept 1993]; Williams v. Mascitti, 71 AD2d 813 [4th Dept 1979]). Indeed, in the absence of demonstrated prejudice to defendants, it is an abuse of discretion to deny consolidation ( Raboy v. McCrory Corp., 210 AD2d 145, supra). Here, neither WDF and Steelco showed that they would suffer substantial prejudice as a result of the consolidation ( see Chinatown Apartments v. NYC Transit Authority, 100 AD2d 824, supra; Okin v. White Plains Hospital, 97 AD2d 399 [2nd Dept 1983]).
WDF argues that it would be prejudiced by consolidation, because the forum selection clause in its Subcontract operates to bar this Court from consolidating the two actions.
The Court rejects this argument. Although the WDF Subcontract provides for a Westchester County venue, the Prime Contract, which was incorporated by reference into the WDF Subcontract, provides for the commencement, or transfer, of actions regarding the Project, to New York County.
Moreover, courts considering the issue of whether to enforce an agreement's otherwise valid forum selection clause have uniformly held that such provision should not be enforced when it would contravene public policy ( see Koko Contr., Inc. v. Continental Environmental Asbestos Removal Corp., 272 AD2d 585 [2nd Dept 2000]; National Union Fire Ins. Co. of Pittsburgh, PA v. Williams, 223 AD2d 395 [1st Dept 1996]). The consolidation of similar actions that have common questions of law and fact is strongly favored by both judicial and public policy ( see Firequench, Inc. v. Kaplan, 256 AD2d 213 [1st Dept 1998]; Amtorg Trading Corp. v. Broadway 56th St. Assocs., 191 AD2d 212, supra). Thus, a provision that would otherwise limit a court's ability to exercise its judicial discretion under CPLR 602 is unenforceable ( see Ultrashmere House, Ltd. v. 38 Town Assocs., 123 Misc2d 102 [Sup Ct, NY County 1984] [a contract provision may not serve as a basis for denying a motion to consolidate]).
Accordingly, Perini's cross motion for consolidation is granted.
IV. STV's Cross Motion for Partial Summary Judgment
STV argues that it is entitled to summary dismissal of the first, second, third, fourth, and sixth causes of action of the third-party complaint, which expressly or impliedly seek relief based on the principles of indemnification and contribution, on the grounds that Perini did not delegate any of its duties to STV, the Steelco complaint is predicated upon Perini's alleged wrongdoing, and the underlying damages sought by Steelco are based in breach of contract, not tort. STV also contends that it is entitled to dismissal of those portions of Perini's seventh and eighth causes of action that suggest that STV breached a purported oral agreement between the parties that pre-dated their written agreement, because the Professional Services Agreement contains a merger clause, providing that there were no other agreements between the parties.
In its first cause of action, Perini asserts that, if Steelco prevails in the main action, Perini is entitled to be indemnified by STV for any of Steelco's claims arising out of any STV errors or omissions in its performance of work under the Professional Services Agreement. In support of this cause of action, Perini cites Section 11 of the Professional Services Agreement, which deals with STV's warranties to Perini. In addition to its claim for indemnification, Perini also seeks damages in this cause of action.
In its second and third causes of action, Perini alleges that, if it is determined to be liable to Steelco, it is entitled to indemnification and contribution from STV.
In its fourth cause of action, Perini asserts that, "to the extent that Perini is adjudged liable herein for damages," such liability is attributable to STV's failure to "duly perform all terms and conditions of the Professional Services Agreement" (Amended Third-Party Complaint, ¶ 31). Although this cause of action is framed as one for breach of contract, the only contract damages which are sought are those attributable to Steelco's claims in the main action. Thus, Perini also seeks indemnification in this cause of action.
In its sixth cause of action, Perini asserts that, based on their professional relationship, STV owed Perini an independent duty of care, and that if Perini is found to be liable to Steelco, its liability is attributable to STV's breach of such duty. Although this cause of action is characterized as a negligence claim, in seeking to shift the entire Steelco loss to STV, it is, in reality, also an indemnification claim.
In its seventh cause of action, Perini alleges that information and design drawings provided to it by STV during both the proposal phase and the design phase were erroneous, and constituted a breach of the Professional Services Agreement. These allegations regarding both the pre-bid and post-bid periods are incorporated by reference into the eighth cause of action, in which Perini alleges that it is entitled to recover in excess of $11 million for STV's alleged breach of the independent duty of care that it owed Perini, based upon STV's status as a professional engineer.
STV does not seek dismissal of the fifth cause of action, in which Perini asserts a breach of contract claim alleging that STV's failure to perform its design work in accordance with the Professional Services Agreement and the Prime Contract compelled Perini and Steelco to incur additional costs, or those portions of the seventh and eighth causes of action arising out of the parties' written agreement. STV asserts that it recognizes that "there are factual issues which must be determined" to adjudicate these causes of action, as well as STV's counterclaims (Perini Mem of Law, at 4).
A. Indemnification (First, Second, Fourth, and Sixth Causes of Action)
The right of a party to shift its loss to another party under the doctrine of indemnification may be based upon an express contract or an implied obligation ( Bellevue South Assocs. v. HRH Constr. Corp., 78 NY2d 282). There is no right to recovery under a theory of implied indemnification, unless the party seeking indemnity has delegated exclusive responsibility for the duties giving rise to the loss, to the party from whom indemnification is sought ( Guzman v. Haven Plaza Hous. Dev. Fund Co., Inc., 69 NY2d 559; 17 Vista Fee Assocs. v. Teachers Ins. and Annuity Assoc. of America, 259 AD2d 75, supra).
Although the Professional Services Agreement provided Perini with an express contractual right to indemnification, such right is unambiguously limited to instances in which claims were asserted for property damage or personal injury directly attributable to STV's negligence:
To the fullest extent permitted by law, [STV] hereby agrees to defend, indemnify and hold harmless Perini and NYCTA, . . . and all other "Indemnified Parties" listed in the contract between NYCTA and Perini from and against all claims, . . . for property damage and personal injury up to and including death, arising out of the alleged or actual negligence of the Engineer in the performance of the Work hereunder. (Emphasis added.)
Professional Services Agreement, § 10.1. Thus, Steelco's action for contract damages does not trigger STV's contractual duty to indemnify. Nor does the doctrine of common-law implied indemnity apply to the facts at bar.
Implied indemnity "involves an attempt to shift the entire loss from one who is compelled to pay for a loss, without regard to his own fault, to another party who should more properly bear responsibility for that loss because it was the actual wrongdoer" ( Trustees of Columbia Univ. v. Mitchell/Giurgola Assocs., 109 AD2d 449, 451 [1st Dept 1985]; see also Raquet v. Braun, 90 NY2d 177). The predicate for the application of common law implied indemnification "is vicarious liability without actual fault on the part of the proposed indemnitee" ( Trustees of Columbia Univ. v. Mitchell/Giurgola Assocs., supra., 109 AD2d at 453). It necessarily follows that a party which has participated to any degree in the wrongdoing will not receive the benefit of the doctrine ( Trump Village Section 3, Inc. v. New York State Hous. Fin. Agency, 307 AD2d 891 [1st Dept 2003]; 17 Vista Fee Assocs. v. Teachers Ins. Annuity Assoc. of Am., 259 AD2d 75, supra).
A review of the Professional Services Agreement makes clear that Perini retained the unfettered right to approve or reject or issue directions regarding STV's design. It thus maintained exclusive control over the construction of the Project, and the means and method of construction:
[STV] will revise drawings as necessary to comply with Perini requirements. [STV] will consult with, and follow the direction of Perini when choosing design alternatives and options permitted within the project constraints and in accordance with accepted professional standards, the Contract Documents, and all applicable codes and rules.
* * *
[STV] shall not have control or charge of construction activities and shall not be responsible for construction means, methods, techniques or procedures, or for safety precautions, or programs or the acts or omissions of Perini and/or their subcontractors, or for the failure of any of them to carry out the work in accordance with the Contract Documents.
Professional Services Agreement, §§ 2.2; 2.13
In addition, STV presents evidence that, pursuant to these express provisions of the Professional Services Agreement, Perini in fact maintained control over each subcontractor's performance throughout the Project. For example, and in accordance with section 2.2 of the Professional Services Agreement, during the design phase of the contract, STV was required to, and did, participate in regularly held Design Review meetings at which Perini and various subcontractors examined and commented upon STV's design drawings, and expressed objections thereto, at each stage of the design process ( see 11/20/03 Aff. of Joseph Lucca, ¶¶ 21-24; Exh L). At the conclusion of these meetings, STV was required to incorporate Perini's design suggestions into the Project design, even over STV's objections ( see id., ¶¶ 12-24). Moreover, throughout the life of the Project, Perini initiated various design changes, which STV was compelled to integrate into the design ( see id.).
Thus, as a matter of law, Perini cannot be deemed to have delegated exclusive responsibility to STV for the duties which gave rise to the additional work Steelco claims was performed.
In its opposition, Perini conclusorily denies that it played any role in the design process, and contends that STV was ultimately responsible for designing the entire Project. These denials, however, are insufficient to refute the unambiguous terms of the Professional Services Agreement, which demonstrate that Perini retained complete control over the design phase of the Project.
Moreover, a review of the Steelco complaint demonstrates that each of the allegations asserted against Perini, for which it now seeks indemnification, are claimed breaches of Perini's duties for which STV could not possibly have had any responsibility. Thus, Steelco alleges that "Perini caused inappropriate acts, omissions, delays and interference" (Complaint, ¶ 14), and that "Perini wrongfully refused and neglected to pay" Steelco ( id., ¶ 19). These allegations of Perini's wrongdoing and the lack of any allegations that STV assumed responsibility for Perini's contract obligations establish that Perini is not entitled to prosecute its claims of indemnity against STV a stranger to the Steelco Subcontract. ( see, Intellisec v. Firecom, Inc. 2001 WL 218940 [ED NY 2001]; see also Edgewater Constr. Co., Inc. v. 81 3 of Watertown, Inc., 252 AD2d 951, 952 [4th Dept], lv denied 92 NY2d 814 [Court found that because plaintiff, in underlying lawsuit, was suing for "breach of the construction contract and is not seeking to hold [the defendant] vicariously liable for any negligence by Wal-Mart, [it] has no cause of action against Wal-Mart for common-law or implied indemnification"]).
Indeed, actions in which indemnity claims have been dismissed because the underlying complaint asserted claims solely against the defendant/third-party plaintiff are legion ( see e.g. Mathis v. Central Park Convervancy, Inc., 251 AD2d 171 [1st Dept 1998]; Axel Johnson, Inc. v. Arthur Andersen Co., 830 F Supp 204[SD NY 1993]; Aetna Cas. And Sur. Co., v. Spartan Mech Corp., 738 F Supp 664 [ED NY 1990]).
Perini contends that the Steelco complaint is not just a breach of contract claim regarding claims for items of additional work. Rather, Perini asserts that STV is liable for damages which may be attributable to Steelco's delay claims, estimated by Perini to comprise $2,000,000. This assertion is without merit.
Both the Prime Contract and the Steelco Subcontract contain exculpatory provisions precluding delay damages. Such a provision must be enforced, unless the party seeking the delay damages can establish that they were caused by another party's willful or gross misconduct ( see A.R. Mack Constr. Co., Inc. v. Central Square School Dist., 278 AD2d 839, supra). Perini's admitted reliance on the "no damages for delay" clause as a defense to Steelco's delay claim also insulates STV from an indemnity claim, because Steelco does not allege that STV is guilty of willful misconduct or gross negligence.
Accordingly, the first, second, fourth, and sixth causes of action of the third party claims for indemnification, are dismissed.
B. Contribution (Third Cause of Action)
In its third cause of action, Perini asserts that Steelco's damages are attributable to STV's alleged design errors and that, as such, Perini is entitled to contribution "based upon common law and statutory principles" (Amended Third-Party Complaint, ¶ 28). It is undisputed that, in the main action, Steelco seeks economic damages for Perini's breach of contract. Under well settled law, the doctrine of contribution is wholly unavailable where, as here, the primary plaintiff seeks economic damages for breach.
In the Steelco Subcontract, Perini and Steelco expressly recognized that, because the Project was "design/build," the NYCTA's preliminary design and specifications were to be "supplemented" or "replaced" by those prepared by STV, that there could be "redesign changes that would increase" Steelco's costs, and that, in such event, Steelco could obtain additional compensation from Perini in accordance with the procedure contained therein.
A review of the Steelco complaint makes clear that Steelco simply seeks to enforce this provision, and in so doing, recover the contractual benefits of its bargain with Perini. Indeed, in Steelco's motion for partial summary judgment, its counsel characterizes the action as an "action for breach of contract seeking to recover for the unpaid contract balance as well as additional and extra steel construction work" (11/20/03 Halber Aff., ¶ 2). Likewise, Perini itself concedes that Steelco is "essentially asserting a breach of contract claim against Perini" (Perini's Opp Mem of Law, at 12).
Contribution is the principle by which a loss is distributed among joint tort-feasors to pay a proportionate share of the loss to one who has been compelled to pay more than his share of a common burden ( see e.g. Rosado v. Proctor Schwartz, Inc., 66 NY2d 21). Pursuant to CPLR 1401, "two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought."
The Court of Appeals has made clear that "purely economic loss resulting from a breach of contract does not constitute 'injury to property' within the meaning of . . . CPLR 1401," and that thus, a defendant may not seek contribution from other defendants where the alleged tort is essentially a breach of contract claim ( Board of Educ. of Hudson City School District v. Sargent, Webster, Crenshaw Folley, 71 NY2d 21, 26; see also Bellevue South Assocs. v. HRH Constr. Corp., 78 NY2d 282, supra; Trump Village Section 3, Inc. v. New York State Hous. Fin. Agency, 307 AD2d 891, supra).
The "determining factor as to the availability of contribution is not the theory behind the underlying claim but the measure of damages sought" ( Rockefeller University v. Tishman Constr. Corp. of New York, 240 AD2d 341, 343 [1st Dept], lv denied 91 NY2d 803). Thus, where a plaintiff's direct claims seek only the contractual benefit of its bargain, even where malpractice claims are asserted, contribution is unavailable ( Board of Educ. of Hudson City School District v. Sargent, Webster, Crenshaw Folley, 71 NY2d 21, supra; Trump Village Section 3, Inc. v. New York State Hous. Fin. Agency, 307 AD2d 891, supra).
For example, in Board of Educ. of Hudson City School District, the Court of Appeals affirmed the dismissal of a third-party contribution action brought by an architect arising from the installation of defective roofing, because the underlying action against the architect was for breach of contract, not tort. The Court held that "[t]o permit apportionment of liability, pursuant to CPLR 1401, arising solely from breach of contract would not only be at odds with the statute's legislative history, but also do violence to settled principles of contract law which limit a contracting party's liability to those damages that are reasonably foreseeable at the time the contract is formed" ( id. at 28). The Court further held that a right of contribution cannot be created through a party's bald assertions of a breach of a "duty of due care" in performing the terms of the contract, because "merely charging a breach of a 'duty of due care,' employing language familiar to tort law, does not, without more, transform a simple breach of contract into a tort claim" ( id. at 29 [citation and quotation omitted]; see also Tempforce Inc. v. Municipal Hous. Auth. of City of Schenectady, 222 AD2d 778, 780 [3rd Dept 1995], lv denied 87 NY2d 811 [third-party plaintiff's artfully drawn pleading alleging negligent professional performance "cannot change the nature of this action from a contract to a tort to enable Third-Party Plaintiff to seek apportionment of liability").
Likewise, here, it is indisputable that Steelco simply seeks the benefit of its contractual bargain with Perini. Indeed, Perini concedes that, absent a predicate for tort liability, it is not entitled to contribution. Nevertheless, Perini suggests that the Court should look to the claims of professional negligence that it has interposed, rather than those asserted by Steelco, to determine the viability of Perini's contribution claim. The sole support for this suggestion is Sommer v. Federal Signal Corp. ( 79 NY2d 540). Sommer, however, has no relevance to this issue. In that case, the Court of Appeals expressly recognized that its decision in Board of Education of Hudson City School District "makes clear that contribution does not lie in contract cases," and specifically found that the predicate for the contribution claim was that the underlying claim also "sounds in tort" ( id. at 556).
Thus, Perini's attempt to convert the underlying action for breach into one for tort through its allegations of STV's breach of its professional duties is insufficient as a matter of law to support Perini's third cause of action for contribution ( see Board of Educ. of Hudson City School District v. Sargent, Webster, Crenshaw Folley, 71 NY2d 21, supra; Tempforce Inc. v. Municipal Hous. Auth. of City of Schenectady, 222 AD2d 778, supra). The third cause of action is dismissed.
C. Breach of Warranty
In its first cause of action for indemnification, Perini also contends that STV has breached sections 11.1, 11.3 and 11.4 of the Professional Services Agreement, which set forth STV's warranties to Perini, and seeks damages for such claimed breach.
Pursuant to section 11.1, STV warranted that it would perform its duties in a manner consistent with the degree and skill ordinarily exercised by members of the same profession. Section 11.3 provides, in relevant part:
In the event that as a result of [STV's] work having failed to comply with the standard set in section 11.1 and that failure is determined to have been the cause of a failure to achieve compliance with Perini's warranty obligations [to the NYCTA], the Engineer shall be fully responsible for redesign necessary to achieve compliance and for the cost of any replacement and/or retrofit and/or corrective work, all subject to approval by Perini and NYCTA. The Engineer's obligation shall be limited to costs incurred in excess of the stated limits of the Owner's Controlled Insurance Program.
Section 11.4 provides that Perini's right to recover costs under this warranty section is limited to those instances in which costs are "incurred by Perini as a result of warranty obligations under the contract between Perini and NYCTA to the extent arising out of failures by [STV] in accordance with the standards in Section 11.1."
Thus, under the specific terms of the Professional Services Agreement, STV is not required to compensate Perini for a breach of warranty, unless: (1) there has been a failure to achieve compliance with Perini's warranty obligations [to the NYCTA]; (2) such breach is attributable to STV's errors and omissions; and (3) Perini is compelled to expend funds to cure its breach.
This express language of the Professional Services Agreement disposes of Perini's breach of warranty claims. The contractual warranties contained in that agreement are only triggered by the NYCTA's allegations of a breach. The NYCTA, which is not a party in these actions, has asserted no such claim. Moreover, Perini does not allege in the amended third-party complaint that it either breached its obligations to the NYCTA as a result of STV's alleged errors and omissions, or incurred costs to remedy such breach. As such, the remainder of Perini's first cause of action, which asserts breach of warranty damages, is dismissed.
D. Oral Agreement (Seventh and Eighth Causes of Action)
STV also seeks dismissal of the portion of Perini's seventh and eighth causes of action which alleges that STV breached a purported oral agreement between the parties, which pre-dated the written Professional Services Agreement.
A review of the Professional Services Agreement establishes that there is no support for Perini's claim that STV was obligated to furnish it with information during the pre-bid phase of the Project. Thus, STV is entitled to summary judgment. STV's contractual responsibilities, which are unambiguously set forth in the Professional Services Agreement, are limited to its performance of post-proposal services. The Professional Services Agreement obligated STV to advance the NYCTA's preliminary drawings to completed status, to prepare and file applications necessary to obtain permits, to interpret the requirements of the contract drawings and specifications, to review and approve submittals, and to prepare and update "as built" plans ( see Professional Services Agreement, § 2). STV had no contractual obligations to Perini during the pre-proposal/pre-bid period.
Indeed, the express terms of the Professional Services Agreement preclude Perini from introducing parol evidence to change and enlarge STV's written contract regarding the Project:
This Agreement represents the entire agreement between Perini and the Engineer and supersedes all prior negotiations, representations or agreements.
Professional Services Agreement, § 14.1. Where parties express their intention that all of their contract obligations are contained in the contract, evidence of a purported oral, inconsistent agreement is barred ( W.W.W. Assocs., Inc. v. Giancontieri, 77 NY2d 157; see also Chimart Assocs. v. Paul, 66 NY2d 570). Thus, Perini is barred from seeking to enforce the terms of the purported oral agreement. As such, all of Perini's allegations relating to the pre-bid/pre-proposal period must be stricken from the seventh and eighth causes of action.
In response to the summary judgment motion, Perini now contends, for the first time, that there was an independent and wholly separate "Teaming Agreement" between the parties, which is the basis for its pre-bid damages. According to Perini, this oral agreement was entered into during the proposal phase of the Project, and as a result thereof, Perini relied on STV to (1) undertake a complete review of the RFP to determine that it was code compliant and technically accurate; (2) note all potential engineering or design problems related to the preliminary design; and (3) provide pricing information for Perini's cost proposal. Perini argues that because the Teaming Agreement is separate and independent from the Professional Services Agreement, the merger clause cannot bar its separate claim for breach of the Teaming Agreement.
Perini's amended third-party complaint contains no allegation of an independent oral agreement between the parties. Rather, Perini specifically alleges that all of its $11 million in contract damages flows from STV's alleged breach of the parties written Professional Services Agreement ( see Amended Complaint, ¶ 50). This newly asserted claim cannot survive STV's cross motion for summary judgment. Perini fails to submit competent evidence of this alleged oral agreement, sufficient to raise an issue of fact.
The affidavits of John Moore, the Project Manager, George Loomis, Moore's assistant, and Joseph Ertle, the Project Executive, contain only bald assertions of an alleged oral, prior agreement between Perini and STV ( see Moore Aff., ¶ 5, Ertle Aff., ¶ 16; Loomis Aff., ¶ 11). For instance, in his affidavit, Loomis generally asserts that the parties reached an oral agreement regarding the pre-proposal phase during a November 3, 1999 meeting. Loomis does not, however, describe the terms of such oral agreement allegedly reached at that meeting. Instead, Loomis vaguely states that he "prepared [meeting] minutes confirming the substance of the agreements reached" (Loomis Aff., ¶ 11). None of these affidavits identifies the STV representative with whom such oral agreement was allegedly reached, or evidence that would lead to the conclusion that any STV attendee at the meeting was authorized to unilaterally enter into such an agreement on STV's behalf.
As such, the affidavits are insufficient to defeat summary judgment. Conclusory affidavits purporting to establish the existence of an oral contract, which do not include evidentiary details regarding the persons who allegedly reached the oral agreement, or the substance of the conversations giving rise to the agreement, are not sufficient to defeat summary judgment ( see Robert Half Intl., Inc. v. Re-Track USA, 261 AD2d 376 [2nd Dept 1999]; Apache-Beals Corp. v. Intl. Adjusters, Ltd., 59 AD2d 1032 [4th Dept 1977], affd 46 NY2d 888).
Perini further asserts that two Perini memos, signed only by Perini, which allegedly memorialized meetings between STV and Perini on November 3 and 11, 1999, provide evidence of the purported oral agreement. These memoranda, however, add nothing to Perini's case. Neither document is signed by STV, nor do they contain any language which indicates that the parties had reached a meeting of the minds.
Loomis asserts that his November 3, 1999 meeting minutes demonstrate that the parties had reached an agreement. In fact, that document, which clearly states that the meeting's purpose was simply to "discuss" the Perini proposal, demonstrates the opposite:
The following is a summary of the meeting held in Perini's Framingham office on November 3, 1999, at 1:00 P.M. for the purpose of discussing our proposal for the N.Y.C. Bus Depot.
(Loomis Aff., Exh A). The other meeting minutes submitted by Perini further establish the preliminary nature of the parties' discussions, containing a reminder that the next meeting would be held the following week, and inviting all to apprise Loomis "if there are any additions, deletions or discrepancies" ( see id; Aff. of John Moore, Exh A). There is nothing contained in these meeting minutes that either suggests that STV assented to the items set forth therein, or that any STV attendee was authorized to bind STV to a contract.
Moreover, the general allusions in these meeting minutes to "missing design information," or to STV's review of the accuracy of the RFP, are far too vague to allow a conclusion of a complete, binding contract between the parties. "The party seeking to enforce a contract bears the burden to establish that a binding agreement was made and to prove the terms of the contract" ( Allied Sheet Metal Works, Inc. v. Kerby Saunders, Inc., 206 AD2d 166, 169 [1st Dept 1994]). Thus, "[t]he agreement is required to be sufficiently definite so that a court can ascertain its terms for the purpose of determining whether it has been breached" ( id.).
Perini's reliance on Storer v. Ripley ( 282 App Div 950 [2nd Dept 1953]) is misplaced. In that case, the party seeking to establish an oral agreement had adduced "sufficient evidence of the oral agreement" ( id. at 951). Here, in contrast, Perini has provided no competent evidence of the alleged oral agreement.
Finally, Loomis' allegation that, "upon information and belief, during the preparation of the Proposal, Perini relied upon STV to provide it with certain technical information and engineering services" (Loomis Aff., ¶ 10), does not create an issue of fact. Affidavits made upon information and belief are not proof in evidentiary form sufficient to defeat a summary judgment motion ( see e.g. Wood v. Nourse, 124 AD2d 1020 [4th Dept 1986]).
STV is thus entitled to summary dismissal of those portions of the seventh and eighth causes of action that refer to STV's breach of a prior oral agreement between the parties by supplying erroneous information to Perini during Perini's pre-proposal/pre-bid preparation of Perini's response to the RFP.
The Court has considered the remaining claims, and finds them to be without merit.
Accordingly, it is
ORDERED that Steelco's motion for severance is denied; and it is further
ORDERED that Steelco's motion for partial summary judgment is denied; and it is further
ORDERED that Perini's cross motion for consolidation is granted, and Perini Corp. v. WDF, Inc. and Federal Ins. Co., Index No. 12987/03 (Supreme Court, Westchester County), is consolidated into this action, under New York County Index No. 104341/02, and the consolidated action shall bear the following caption:
And it is further
ORDERED that the Clerk of the Supreme Court, Westchester County, shall transfer the papers on file under Index No. 12987/03 to the Clerk of this Court upon service of a certified copy of this order and payment of the appropriate fee, if any; and it is further
ORDERED that the pleadings in the actions hereby consolidated shall stand as the pleadings in the consolidated action; and it is further
ORDERED that upon service on the Clerk of the Court of a copy of this order with notice of entry, the Clerk shall consolidate the papers in the actions hereby consolidated and shall mark his records to reflect the consolidation, and it is further
ORDERED that a copy of this order with notice of entry shall also be served upon the Clerk of the Trial Support Office (Room 158), who is hereby directed to mark his records to reflect the consolidation; and it is further
ORDERED that STV's cross motion for partial summary judgment is granted, and the first, second, third, fourth, and sixth causes of action of the amended third-party complaint are dismissed, and those portions of the seventh and eighth causes of action of the amended third-party complaint that refer to STV's breach of a prior oral agreement between the parties by supplying erroneous information to Perini during Perini's pre-proposal/pre-bid preparation of Perini's response to the RFP are stricken; and it is further
ORDERED that within twenty days of the service upon its attorneys of a copy of this decision and order, Perini shall serve a verified amended third-party complaint which shall contain only the material not stricken or dismissed by this decision; and it is further
ORDERED that the remainder of the action shall continue.