Acranom Masonry, Inc. v. Wenger Construction Co., Inc.

Filing 43

ORDER: For the reasons stated in the attached memorandum and order, the Court grants in part and denies in part Wenger's motion for summary judgment. The Court denies Wenger's motion for a finding that Wenger is entitled to a credit of  6;1,050,000 for the elimination of 17,700 square feet of brick removal from the scope of the Project. The Court denies Wenger's motion for a credit of $23,769 based on Acranom's failure to provide payment and performance bonds as requi red by the Subcontract. The Court grants Wenger's motion for summary judgment dismissing Acranom's claims for extra work denominated as PCOs ##5, 6, 7, 8, 9, 11, 12, 13, and 14. The Court grants Wenger's motion for a credit under the Subcontract for payments made to Acranom and on Acranom's behalf, totaling $596,124.20. Ordered by Judge Pamela K. Chen on 9/29/2017. (Chivers, Jeffrey)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ACRANOM MASONRY, INC.,
Plaintiff,

MEMORANDUM & ORDER

- against -

14-CV-1839 (PKC)

WENGER CONSTRUCTION CO., INC.,
Defendant.
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PAMELA K. CHEN, United States District Judge:
Plaintiff Acranom Masonry, Inc. (“Acranom”) brings this action against Defendant Wenger
Construction Co., Inc. (“Wenger”) seeking compensation for work that Acranom performed, as a
subcontractor to Wenger, on a construction project commissioned by the New York City School
Construction Authority (“SCA”). Before the Court is Defendant’s motion for partial summary
judgment. For the reasons stated below, Defendant’s motion is granted in part and denied in part.
BACKGROUND
I. Relevant Facts1
A. Pre-Contract Communications
In February 2011, Wenger submitted a bid to the SCA for a contract to complete a
construction project at a public school in Brooklyn, New York (the “Project”). (Affidavit of David

1

The facts recited in this section are taken from the parties’ Local Rule 56.1 submissions
and the record evidence cited therein. (Def.’s 56.1 Stmt., Dkt. 33; Pl.’s 56.1 Response, Dkt. 40)
Where a party’s Rule 56.1 Statement is cited and there is no contrary evidence in the record, the
Court deems that fact to be undisputed and admitted. Unless otherwise noted, a standalone citation
to a 56.1 Statement denotes that the Court has deemed the underlying factual allegation undisputed.
Any citation to a party’s Rule 56.1 Statement incorporates by reference the documents cited therein
unless otherwise noted. Where relevant, however, the Court may cite directly to the underlying
document.

Wenger (“Wenger Aff.”)2, Dkt. 32-9, ¶ 3; Dkt. 32-10 at 7.) While that bid was pending, Wenger
solicited price quotes from subcontractors for the completion of certain masonry work within the
scope of the Project. (Def.’s 56.1 Stmt., Dkt. 33, ¶ 2; Pl.’s 56.1 Response, Dkt. 40, ¶ 2.)
Acranom submitted a price quote to Wenger for the masonry work on or around March 29,
2011. (See Dkt. 32-12.) On March 30, 2011, evidently after a phone call with a representative of
Wenger, an Acranom project manager, Anthony Stewart, sent Wenger an email to update
Acranom’s price quote to reflect the following additions: (i) “Paint removal and gr[a]ffit[i] paint
cost 212,000”; and (ii) “Brick replacement 65 per ft 18000 x 65 equals[] 1,170,000.” (Dkt. 32-12
at ECF3 2.)
On or around April 18, 2011, the SCA officially awarded the Project to Wenger.
(Dkt. 32-10 at 7.) The SCA and Wenger entered into a contract (the “Prime Contract”) that
established, among other things, the scope of the Project, the terms and conditions of Wenger’s
completion of the Project, and a contract price of $4,269,000. (Dkt. 32-10; Dkt. 39 at ECF 50-111.)
Two days later, on April 20, 2011, Wenger’s President, David Wenger, sent a letter to Acranom,
notifying Acranom that “Wenger will proceed with drafting a contract for the work based upon
your March 29, 2011 quote . . . and subsequent March 30, 2011 e-mail confirming the 18000 square
foot brick removal/replacement provision unit cost of 65/ sq.ft. The total contract cost will be
$1,960,000.00.” (Dkt. 32-13.)
On May 2, 2011, Acranom project manager Anthony Stewart sent an email to David
Wenger regarding the cost of a performance bond for the work that Acranom would perform for

2

David Wenger is the President of Wenger. (Wenger Aff., Dkt. 32-9, ¶ 1.)

3

“ECF” refers to the pagination generated by the Court’s CM/ECF system, and not the
document’s internal pagination.
2

Wenger. (Dkt. 32-18.) In the email, Stewart stated that “the cost of the Bond for 100% of the
contract value . . . is $23,769.” (Id.)
B. The Subcontract
On or around May 5, 2011, Wenger and Acranom entered into a subcontract
(the “Subcontract”) under which Acranom undertook to perform certain obligations, including the
completion of certain masonry work, in exchange for a total price of $1,960,000. (Dkt. 32-14.)
Article 1 of the Subcontract incorporates certain terms of the Prime Contract between
Wenger and the SCA:
The [Prime Contract], with the Plans, Specifications, Special Provisions, Addenda,
and all other documents by reference forming a part of the [Prime Contract]
between the [SCA] and [Wenger] are hereinafter collectively referred to as the
“General Contract”, which is made a part hereof, and are deemed attached hereto.
[...]
[I]t is agreed that the [Prime Contract], as so defined shall be held and taken as a
part of this Subcontract in every particular.
(Dkt. 32-14 (Subcontract) Art. 1.)
Article 2 of the Subcontract defines the scope of the work that Acranom agreed to perform
under the Subcontract. Specifically, Acranom agreed to “furnish all necessary management,
supervision, labor, materials, tools, supplies, equipment and/or any other act or device required to
diligently and fully perform and complete” the work set forth on Rider A of the Subcontract.
(Dkt. 32-14 (Subcontract) Art 2.) Rider A of the Subcontract, in turn, provides that Acranom
would be responsible for “[f]urnishing and installation of all labor, materials, tools, accessories,
equipment and appliances to perform the Masonry, Exterior Paint Removal, Graffiti Resistant
Coatings, Membrane Waterproofing work as more fully described in [certain] Drawings . . .
prepared by School Construction Authority.” (Dkt. 32-14 (Subcontract) at 14-17.) Rider A lists

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more than 20 such drawings, one of which contains a “provision” for the “replacement of bricks
per face brick replacement detail - approx. 18,000 SF.” (Dkt. 32-11 (Drawing No. T003.00).)
Rider A also contains a section titled “Unit Prices, Allowances, Alternates and Provisions.”
(Dkt. 32-14 (Subcontract) at 17.) That section states, in relevant part:
No Provision is authorized to be commenced or be performed. In order to
commence performance of any Provision, Subcontractor must receive a written
construction authorization signed by a corporate principle [sic] as well as comply
with SCA provision procedures and requirements [sic].
[...]
The following provisions are included in the base contract cost: Removal and
replacement of bricks per face replacement detail – Approximately 18,000 square
feet.
(Id.) But that section does not specify a unit price for the brick removal and replacement, nor does
any other provision of Rider A or the Subcontract. (See generally Dkt. 32-14 (Subcontract).)
Article 3 of the Subcontract specifies the total price of the contract, providing that
“[Wenger] agrees to pay [Acranom] for the work described [in Article 2 and Rider A], the total
price of $1,960,000.” (Dkt. 32-14 (Subcontract) Art. 3.) Article 3 also contemplates, however,
that there could be additions or deductions to the scope and price of the Subcontract: “Payment of
this amount is subject to additions or deductions within the provisions of this Subcontract and of
the other documents to which this Subcontract is subject.” (Id.)
Article 4 of the Subcontract specifies, among other things, the method and timing of
Wenger’s payments to Acranom under the Subcontract. In relevant part, the provision states that,
“[Wenger] will pay [Acranom] within fifteen (15) days after [Wenger], as a condition precedent,
receives payment from the [SCA] for [Acranom’s] items of work on the quantities paid for by the
[SCA] and on the basis and in the manner stipulated in the [Prime Contract], (which [Acranom]
shall accept as agreed) and on the basis of ninety-five (95%) percent of the value of Subcontractor’s
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items of work at the prices stipulated.” (Dkt. 32-14 (Subcontract) Art. 4.) The provision also
states that “[Wenger] reserves the right to issue joint checks and/or direct checks to [Acranom]
and/or its vendors, suppliers or subcontractors, or any of [Acranom’s] creditors having potential
lien rights against the work.” (Dkt. 32-14 (Subcontract) Art. 4.)
Article 19 of the Subcontract addresses the possibility of “extra” work by Acranom beyond
the scope of the Subcontract:
It is expressly understood that the amount hereinabove stated for performance of
the work herein, represents the full consideration to be paid for the said work and
in no event shall there be any claims for “extras” or time delays against [Wenger],
unless [Wenger] agrees, in writing, to pay an extra amount. Any deviation from
the foregoing provisions shall be null and void. Any changes, modifications or
extension of the work to be performed herein may only be done by written order
executed by [Acranom] and by an officer of [Wenger].
(Dkt. 32-14 (Subcontract) Art. 19.)
Article 20(a) of the Subcontract addresses the possibility of a disagreement between
Wenger and Acranom about work performed by Acranom during the Project:
When work is required to be done but the parties cannot agree whether it is extra
work or contract work or cannot agree on the value of the work ordered to be done,
[Acranom] shall perform the work without delay upon written order from [Wenger]
. . . . In the event [Acranom] proceeds with work under this Article without an
agreement that the work is in fact extra and/or an agreement on the value of the
work to be done, [Acranom] shall keep complete and acceptable time and material
records of its actual costs in performing said work and present said records to a duly
authorized representative of [Wenger] on a daily basis for signature. [Wenger] is
to be provided with the all originals [sic]. Failure to strictly comply with this
provision will constitute a waiver of any claim on account of such work.
(Dkt. 32-14 (Subcontract) Art. 20.)
Article 20(b) of the Subcontract addresses the timing of certain types of damages claims
that Acranom may make under the Subcontract:

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[Acranom] shall make all claims for damages because of any claimed default,
breach, delay, interference, act or omission of [Wenger] in writing within five (5)
days after the occurrence of such act or omission. If [Acranom] fails to make
written notice of claim within the time specified, stating the nature of the claim, the
costs associated with the claim, the work delayed and its scheduled effect on the
work to be subsequently performed, such failure shall constitute a waiver of the
claim and preclude recovery.
(Dkt. 32-14 (Subcontract) Art. 20.)
Article 27(B) of the Subcontract sets forth certain “Special Conditions,” including the
following: “1. This order supersedes all prior estimates and/or proposals. 2. [Acranom] to
provided [sic] acceptable 100% Payment & Performance Bonds (prerequisite for payment).” (Dkt.
32-14 (Subcontract) Art. 27(B).)
Article 29 of the Subcontract contains the following choice-of-law provision: “any
interpretation of this Contract shall be governed by the Laws of the State of New York.” (Dkt.
32-14 (Subcontract) Art. 29.)
Article 31 of the Subcontract contains the following merger clause:
This writing comprises the full and entire agreement between the parties affecting
the work provided to herein. No other agreement or understanding of any nature
concerning the same has been entered into or will be recognized. [Wenger] has
made no inducements or representations to [Acranom] whatsoever except as
expressly stated in this Subcontract. No oral modification of this Subcontract shall
have any force or effect.
(Dkt. 32-14 (Subcontract) Art. 31.)
C. Changes to the Scope of the Project
With the Project underway,4 the SCA and Wenger began to discuss the removal of certain
work from the scope of the Project. (Wenger Aff., Dkt. 32-9, ¶ 9.) As a result of those negotiations,

4

The parties do not indicate when work on the Project began.
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on October 5, 2012, the SCA and Wenger executed Change Order No. 4, which amended the Prime
Contract by eliminating certain brick removal and replacement from the scope of work. (Dkt. 3215 at ECF 2-3.) The effect of Change Order No. 4 was to eliminate approximately 15,900 square
feet of brick replacement from the scope of the Project. (Dkt. 32-15 at ECF 2-3; Dkt. 32-16.) To
account for the elimination of that work, Change Order No. 4 also called for a “credit” to the SCA
in the amount of $558,700, i.e., the amount due to Wenger under the Prime Contract was reduced
by $558,700. (Dkt. 32-15 at ECF 3.)5
On or around October 8, 2012, Wenger transmitted to Acranom a written Change Order
form bearing Wenger’s letterhead (“October 8, 2012 Change Order”). The October 8, 2012
Change Order purported to make the following “modification” to the Subcontract: “Deletion and
addition of all labor, materials, tools, accessories, equipment and appliances as indicated in NOD
00004, for deletion of 15,900 SF of brick replacement under Contract Provision #1.” (Dkt. 32-16.)
The Charge Order specified that the “Total Cost of work” for the Change Order was negative
$540,000, which signified a “credit” to Wenger in the amount of $540,000. (Id.) Near the bottom,
the Change Order stated: “SIGN BELOW AND RETURN BOTH COPIES FOR SIGNATURE.”
(Id.) An Acranom representative signed the October 8, 2012 Change Order on October 11, 2012
and returned the order to Alex Cardinale, a project manager at Wenger. (Dkt. 32-16; Wenger Aff.,
Dkt. 32-9, ¶ 10.) Cardinale then forwarded the Change Order to David Wenger, Wenger’s
President. (Wenger Aff., Dkt. 32-9, ¶ 10.) David Wenger did not sign the October 8, 2012 Change
Order because he believed that Wenger’s credit for elimination of 15,900 square feet from the
scope of Acranom’s brick removal work should be calculated based on the $65-per-square-foot

5

This reduction represented a price of $35.14 per square foot of brick replacement work.
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unit price that was quoted by Acranom project manager Anthony Stewart in his March 30, 2011
email, rather than the effective rate of $35 per square foot in the Change Order. (Id.)
Sometime later during the Project,6 Wenger and the SCA amended the Prime Contract to
eliminate another 1,800 square feet from the brick removal work on the Project. (Wenger Aff.,
Dkt. 32-9, ¶ 11; see also Dkt. 32-17 at ECF 2.) Based on the removal of that 1,800 square feet,
the SCA received a credit of $63,252, which amounted to a credit of $35.14 per square foot
eliminated. (Dkt. 32-17 at ECF 2.) Wenger now claims that, “[a]t the agreed price of $65/SF, this
meant that Wenger was entitled to a . . . credit [from Acranom] for $117,000.” (Dkt. 32-9, ¶ 11.)
D. Payment and Performance Bond
Contrary to the requirements of Article 27(B)(2) of the Subcontract, Acranom did not provide
Wenger with payment and performance bonds prior to entry into the Subcontract. (Pl.’s 56.1
Response, Dkt. 40, ¶ 11.) Acranom also did not provide Wenger with payment and performance
bonds at any time during the course of the Project. (Pl.’s 56.1 Response, Dkt. 40, ¶ 11.)7
E. Purported “Extra” Work by Acranom
Acranom claims to have completed numerous items of “extra” work on the Project for
which it was never compensated. Acranom asserts that, for each item of extra work, it prepared a
Proposed Change Order (“PCO”) for submission to Wenger.
PCO #5. Acranom asserts that, in or around August 2012, Wenger instructed Acranom to
“perform emergency cleanup of materials left by another subcontractor” and “rebuild three
masonry arches . . . [that] had [been] destroyed by the excavation subcontractor.” (Affidavit of

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The exact date is unclear from the record.

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Acranom argues that as “substitution for the bond, [it] agreed to allow Wenger to withhold
additional amounts otherwise due to Acranom for work performed on the Project, above the 5%
retainage permitted in the Subcontract, from each of the monthly requisitions as security, payable
upon completion of the work.” (Monarca Aff., Dkt. 39, ¶ 42.)
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Salvadore Monarca (“Monarca Aff.”),8 Dkt. 39, ¶¶ 61-63.) According to Acranom, “[a]lthough
these arches were not part of Acranom’s initial scope of work, Wenger verbally directed Acranom
to rebuild the destroyed arches in the field to avoid delays to the Project.” (Id. ¶ 64.) Acranom
generated a written change order, dated August 30, 2012, summarizing the work performed and
reporting a total cost of $7,911.9 (Dkt. 39, Ex. 16, at ECF 175-76 (PCO #5).) At some point no
later than March 4, 2013,10 Acranom sent a copy of PCO #5 to Wenger. (Id. at ECF 176 (March
4, 2013 Email from Monarca to R. Manacay); see also Monarca Dep.,11 Dkt. 32-6, at 151:4-23.)
Wenger has not paid Acranom any distinct amount for the work described in PCO #5.
(Monarca Aff., Dkt. 39, ¶ 67.)
PCO #6. Acranom asserts that it performed certain “ductwork” that was beyond the scope
of the Subcontract “as directed in the field by the [SCA] with the full knowledge and consent of
Wenger.” (Monarca Aff., Dkt. 39, ¶¶ 69-70.) Acranom generated a written change order, dated
August 30, 2012, summarizing the work performed and reporting a total cost of $6,584. (Dkt. 39,
Ex. 17, at ECF 178-80 (PCO #6).) At some time prior to October 19, 2012,12 Acranom sent a copy
of PCO #6 to Wenger. (See Dkt. 39, Ex. 18, at ECF 182 (October 19, 2012 Letter to SCA); Dkt. 39,
Ex. 17, at ECF 179-80 (March 2013 Email Thread).) Wenger sought payment from the SCA for
work covered by PCO #6, among other things, on October 19, 2012 (Dkt. 39, Ex. 18, at ECF 182

8

Salvadore Monarca is a principal at Acranom. (Monarca Aff., Dkt. 39, ¶ 3.)

9

The PCO costs stated in this Order are rounded down to the nearest dollar.

10

The record is unclear as to when exactly Acranom sent a copy of PCO #5 to Wenger.

11

“Monarca Dep.” refers to the transcript of the deposition of Salvatore Monarca taken on
January 5, 2016. (Dkt. 32-6.)
12

The record is unclear as to when exactly Acranom sent a copy of PCO #6 to Wenger.
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(October 19, 2012 Letter to SCA)), but Wenger has not paid Acranom any distinct amount for the
work described in PCO #6. (Monarca Aff., Dkt. 39, ¶ 104.)
PCO #7. Acranom asserts that it performed a grout installation that was beyond the scope
of the Subcontract “at Wenger’s verbal field directive.” (Monarca Aff., Dkt. 39, ¶ 73.) Acranom
generated a written change order, dated August 30, 2012, summarizing the work performed and
reporting a total cost of $2,114. (Dkt. 39, Ex. 19, at ECF 184 (PCO #7).) There is no documentary
evidence in the record that Acranom sent Wenger a copy of PCO #7 or any other document related
to Acranom’s purported performance of the work described in PCO #7. In his affidavit, Acranom
principal Salvadore Monarca asserts that Acranom “provided its costs [for PCO #7] to Wenger
after the work was completed,” but the affidavit does not specify when, how, or in what form that
information was transmitted to Wenger. (Monarca Aff., Dkt. 39, ¶ 74.) Wenger has not paid
Acranom any distinct amount for the work described in PCO #7. (Monarca Aff., Dkt. 39, ¶ 104.)
PCO #8. Acranom asserts that, upon Wenger’s direction, Acranom “install[ed] brick in
the lower level after the basement windows were infilled and waterproofed.” (Monarca Aff., Dkt.
39, ¶ 75.) Acranom generated a written change order, dated August 30, 2012, summarizing the
work performed and reporting a total cost of $4,351. (Dkt. 39, Ex. 20, at ECF 186 (PCO #8).) At
some time prior to October 19, 2012,13 Acranom sent a copy of PCO #8 to Wenger. (See Dkt. 39,
Ex. 18, at ECF 182 (October 19, 2012 Letter to SCA); Monarca Aff., Dkt. 39, ¶ 77.) Wenger
sought payment from the SCA for work covered by PCO #8, among other things, on October 19,
2012 (Dkt. 39, Ex. 18, at ECF 182 (October 19, 2012 Letter to SCA)), but Wenger has not paid
Acranom any distinct amount for the work described in PCO #8 (Monarca Aff., Dkt. 39, ¶ 104).

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The record is unclear as to when exactly Acranom sent a copy of PCO #8 to Wenger.
10

PCO #9. Acranom asserts that it “performed extra work to level off window[-]sills at
basement level with mortar and brick” and “patched a rubble wall after demolition at water main
installation.” (Monarca Aff., Dkt. 39, ¶¶ 79-80.) Acranom generated a written work authorization
form, dated February 20, 2013, summarizing the work performed, but without reporting a total
cost. (Dkt. 39, Ex. 21, at ECF 190 (PCO #9).) The form stated that Acranom was “authorized to
perform this additional work, which Acranom Masonry, Inc. will be compensated for,” and was
signed by Chris Carpentieri, a Wenger representative. (Monarca Aff., Dkt. 39, ¶ 81; Dkt. 39, Ex.
21, at ECF 190.) Wenger has not paid Acranom any distinct amount for the work described in
PCO #9. (Monarca Aff., Dkt. 39, ¶ 104.)
PCO #11. Acranom asserts that it performed “extra work to remove and replace brick
damaged by another subcontractor at an entrance door at the direction of Wenger’s field
personnel.” (Monarca Aff., Dkt. 39, ¶ 82.) Acranom generated a written work authorization form,
dated February 28, 2013, summarizing the work performed, but without reporting a total cost.
(Dkt. 39, Ex. 22, at ECF 192 (PCO #11).) The form stated that Acranom was “authorized to
perform this additional work, which Acranom Masonry, Inc. will be compensated for,” and was
signed by Chris Carpentieri, a Wenger representative. (Monarca Aff., Dkt. 39, ¶ 83; Dkt. 39, Ex.
22, at ECF 192.) Wenger has not paid Acranom any distinct amount for the work described in
PCO #11. (Monarca Aff., Dkt. 39, ¶ 104.)
PCO #12. Acranom asserts that Wenger “forced Acranom to remove caulking on the
Project, which should have been performed by the demolition subcontractor, as this work was not
within Acranom’s scope of work.” (Monarca Aff., Dkt. 39, ¶ 86.) Acranom generated a written
change order, dated July 14, 2014, summarizing the work performed and reporting a total cost of
$36,282. (Dkt. 39, Ex. 24, at ECF 197 (PCO #12).) That order, PCO #12, specifies a total cost of

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$36,282, but does not identify when the associated work occurred, what employees did the work,
or how many man-hours were involved. (Id.) There also is no documentary evidence in the record
that Acranom sent Wenger a copy of PCO #12 or any other document related to Acranom’s
performance of the work described in PCO #12. In his affidavit, Monarca asserts that Acranom
“provided Wenger with its costs associated with [PCO #12] on July 14, 2014.” (Monarca Aff.,
Dkt. 39, ¶ 87.) Wenger has not paid Acranom any distinct amount for the work described in
PCO #12. (Monarca Aff., Dkt. 39, ¶ 104.)
PCO #13. Acranom asserts that Wenger “forced Acranom to perform additional work to
clean the [P]roject . . . which Acranom performed in order to avoid delays to the Project.”
(Monarca Aff., Dkt. 39, ¶¶ 88-90.) Acranom generated a written change order, dated July 14,
2014, summarizing the work performed and reporting a total cost of $28,603. (Dkt. 39, Ex. 25,
at ECF 199 (PCO #13).)14 That order, PCO #13, specifies a total cost of $28,603 associated with
180 hours worked by a “Mason” and 180 hours worked by a “Laborer,” but it does not identify
when the work occurred or which employees did the work. (Id.) There also is no documentary
evidence in the record that Acranom sent Wenger a copy of PCO #13 or any other document related
to Acranom’s performance of the work described in PCO #13. In his affidavit, Monarca asserts
that Acranom “provided Wenger with its costs associated with [PCO #13] on July 14, 2014.”
(Monarca Aff., Dkt. 39, ¶ 91.) Wenger has not paid Acranom any distinct amount for the work
described in PCO #13. (Monarca Aff., Dkt. 39, ¶ 104.)

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PCO #13 contains a reference to “Orville H. Platt High School,” which was not the SCA
site where Acranom performed work under the Subcontract. (Dkt. 39, Ex. 25, at ECF 199.)
Acranom asserts that this reference is a “typographical error resulting from Acranom’s use of
standardized forms.” (Monarca Aff., Dkt. 39, ¶ 92.)
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PCO #14. Acranom asserts that it “incurred additional labor costs as a result of having to
work through winter months, which was the result of delays to the Project not caused by Acranom.”
(Monarca Aff., Dkt. 39, ¶ 93.) Acranom also asserts that these costs were increased somehow by
Wenger’s failure to “adequately heat the space to enable Acranom to perform efficiently.”
(Monarca Aff., Dkt. 39, ¶ 94.) Acranom generated a cost summary, dated February 6, 2013, that
summarizes the “added labor costs resulting from Wenger’s failure to provide the contractually
required ‘heat’ to the project,” which Acranom assessed at $77,099. (Dkt. 39, Ex. 26, at ECF 201
(PCO #14).) The record does not indicate whether or when this cost summary was transmitted to
Wenger. Wenger has not paid Acranom any distinct amount for the work described in PCO #14.
(Monarca Aff., Dkt. 39, ¶ 104.)
F. Partial Payments and Partial Lien Waivers
Over the course of the Project, Wenger issued eight checks to Acranom totaling $540,102.
(Wenger Aff., Dkt. 32-9, ¶ 22; Pl.’s 56.1 Response, Dkt. 40, ¶ 42.) Upon receipt of each of these
payments, Acranom signed a separate “Partial Waiver and Release of Lien,” which, in relevant
part, provided:
For and in consideration of the sum [paid by Wenger] . . . the undersigned
[Acranom] does hereby waive and release all liens, demands, claims or rights of
lien of the undersigned [Acranom] . . . on the monies or other consideration due or
to become due from Wenger Construction Co., Inc., [and] [t]he [SCA] . . . for [the
Project] on account of labor or materials or both furnished, on account, for the
premises known as PS 86 of which the undersigned [Acranom] is the Supplier or
Subcontractor or Consultant as per [the Subcontract] and change orders on said
premises.
In addition, the undersigned [Acranom] does hereby forever release, waive, and
discharge Wenger Construction Co., Inc., [and] [t]he [SCA] . . . from any and all
causes of action, suits, debts, accounts, damages, encumbrances, judgments, claims
and demands whatsoever, in law or equity which the undersigned and/or its
successors and/or assignees ever had or now has against Wenger . . . by reason of
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delivery or materials and/or the performance of work relating to the construction of
the Project, but only for materials delivered and work performed . . . .
The undersigned [Acranom] hereby acknowledges that it has received partial
payment, less retainage, . . . for all work performed in connection with the Project
(payment on acct) and the undersigned hereby affirms that there are no outstanding
claims against Wenger . . . in connection with this Project.
(Dkt. 39, Ex. 12, at ECF 130, 135, 142, 150, 157, 163, 165.) Acranom signed the last of these
releases on June 20, 2013. (Dkt. 39, Ex. 12, at ECF 130.)
G. Payments to Third Parties
In addition to the payments that Wenger made to Acranom, Wenger also made the
following payments, totaling $56,022.92, to certain of Acranom’s suppliers and creditors on
Acranom’s behalf: (1) $45,268.72 to the Mason Tenders Trust Fund; (2) $7,591 to RKL Building;
(3) $3,062 to Glenwood Mason Supply; and (4) $101.20 to E&E Equipment. (Def.’s 56.1 Stmt.,
Dkt. 33, ¶¶ 17-20.)15
II. Procedural History
Acranom commenced this action on March 21, 2014. (Dkt. 1.) After the close of
discovery, the parties appeared for a pre-motion conference concerning Wenger’s intention to
file a motion for summary judgment and a motion for leave to amend its answer to add a
counterclaim against Acranom based on events that had occurred during the pendency of the
litigation. (Dkt. 25.) With the Court’s leave, Acranom filed an amended complaint (“Amended
Complaint”) on July 15, 2016, and Wenger filed an amended answer, with its new counterclaim,
on July 29, 2016. (Dkts. 26, 27.) On November 21, 2016, Wenger filed the present motion for

15

Acranom does not dispute that Wenger made these four payments. (See Pl.’s 56.1
Response, Dkt. 40, ¶¶ 17-20.)
14

partial summary judgment on three issues related to Plaintiff’s claims in the Amended
Complaint. (Dkt. 32.)
LEGAL STANDARD
Summary judgment is appropriate where the submissions of the parties, taken together,
“show[] that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986) (summary judgment inquiry is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law”). A dispute of fact is “genuine” if “the [record] evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
The initial burden of “establishing the absence of any genuine issue of material fact” rests
with the moving party. Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir.
2010). Once this burden is met, however, the burden shifts to the nonmoving party to put forward
some evidence establishing the existence of a question of fact that must be resolved at trial. Spinelli
v. City of N.Y., 579 F.3d 160, 166-67 (2d Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). A mere “scintilla of evidence” in support of the nonmoving party is
insufficient; “there must be evidence on which the jury could reasonably find for the [nonmovant].” Hayut v. State Univ. of N.Y., 352 F.3d 733, 743 (2d Cir. 2003) (quotation omitted;
alteration in original). In other words, “[t]he nonmoving party must come forward with specific
facts showing that there is a genuine issue for trial.” Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (quotation omitted; emphasis in original).
In determining whether a genuine issue of fact exists, the court must resolve all ambiguities
and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc.

15

v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). The Court also construes any disputed facts in
the light most favorable to the nonmoving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144,
157-59 (1970). However, “the mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment . . . .” Anderson,
477 U.S. at 247-48 (emphasis in original).
DISCUSSION
In its motion for summary judgment, Wenger asks the Court to rule as a matter of law that
(1) Wenger is entitled to a credit of $1,150,000 for elimination of face brick removal work from
the Subcontract, (2) Wenger is entitled to a credit of $23,769 for Acranom’s failure to provide
payment and performance bonds as required by the Subcontract, (3) Acranom’s claims for extra
work denominated as PCOs ##5, 6, 7, 8, 9, 11, 12, 13, and 14 are barred by the Subcontract and
fail as a matter of law, and (4) Wenger is entitled to a credit of $596,125.86 for payments made to
Acranom or third parties on behalf of Acranom. The Court addresses each prong of Wenger’s
motion in turn.
I.

Wenger’s Credit for Elimination of Face Brick Removal from the Subcontract
As initially executed, the Subcontract required Acranom to perform, among other things,

“approximately 18,000 [square feet]” of face brick removal and replacement. During the course
of the Project, however, Wenger and the SCA twice amended the scope of the Project to
eliminate face brick removal, resulting in the elimination of 17,700 square feet of face brick
removal. To account for the elimination of that work, the SCA received a combined credit of
approximately $621,952 on the Prime Contract.16 In its motion, however, Wenger seeks a much

16

The SCA received a credit of $558,700 for the elimination of 15,900 square feet of face
brick removal, as documented in Change Order No. 4. (Dkt. 32-15 at ECF 3.) The SCA received
16

larger credit from Acranom under the Subcontract. Specifically, Wenger seeks a credit under the
Subcontract equal to the square footage of face brick removal eliminated from the Project
(17,700 ft2) multiplied by a unit price of $65 per square foot, which amounts to a credit of
$1,150,000. (Def.’s Br. (Dkt. 41) at 5.)
Under New York law,17 a court must construe a written agreement according to its plain
and ordinary meaning and in a manner that gives meaning and effect to all of its provisions.
Orchard Hill Master Fund Ltd. v. SBA Commc’ns Corp., 830 F.3d 152, 157 (2d Cir. 2016). Where
a written agreement appears to comprise the parties’ complete agreement on a matter, the parol
evidence rule bars consideration of any extrinsic evidence that would “alter or add a provision to
[the] written agreement.” Schron v. Troutman Sanders LLP, 986 N.E.2d 430, 433-34 (N.Y. 2013).
In such cases, extrinsic evidence may be considered only to cure ambiguities that are apparent
from the face of the contract. See Bailey v. Fish & Neave, 868 N.E.2d 956, 959 (N.Y. 2007); Bank
of N.Y. Trust Co. v. Franklin Advisers, Inc., 726 F.3d 269, 276 (2d Cir. 2013); see also W.W.W.
Assocs., Inc. v. Giancontieri, 566 N.E.2d 639, 642 (N.Y. 1990) (“It is well settled that extrinsic
and parol evidence is not admissible to create an ambiguity in a written agreement which is
complete and clear and unambiguous on its face.” (quotation omitted)). “Whether a contract is
ambiguous is a question of law” to be decided by the court. Bailey, 868 N.E.2d at 959.
Here, the Subcontract contains a broad merger clause, which states that the Subcontract
“comprises the full and entire agreement between the parties” concerning Acranom’s work under
the Subcontract, and that “[n]o other agreement or understanding of any nature concerning the

a credit of $63,252 for the later elimination of another 1,800 square feet of face brick removal.
(Dkt. 32-17 at ECF 2.)
17

As previously noted, the Subcontract’s choice-of-law provision specifies that the
Subcontract “shall be governed by the Laws of the State of New York.” (Dkt. 32-14 (Subcontract)
Art. 29.)
17

same has been entered into or will be recognized.” (Dkt. 32-14 (Subcontract) Art. 31.) This clause
“require[s] full application of the parol evidence rule” to exclude any extrinsic evidence that would
“alter or add a provision to a written agreement.” Schron, 986 N.E.2d at 433-34. Accordingly, to
assess the first prong of Wenger’s motion—i.e., Wenger’s claim for a $1,150,000 credit for the
elimination of 17,700 square feet of face brick removal from the scope of the Project—the Court
first considers the plain meaning of the Subcontract and considers extrinsic evidence only as
necessary to cure ambiguities that are apparent from the face of the Subcontract.
A. Contract Ambiguity
A contract is ambiguous “if it is reasonably susceptible of more than one interpretation . . .
[as] determin[ed] by reference to the contract alone.” Burger King Co. v. Horn & Hardart Co.,
893 F.2d 525, 527 (2d Cir. 1990). To determine whether the Subcontract is ambiguous as to
Wenger’s credit for the eliminated face brick removal work, the Court has considered the
Subcontract as a whole, giving its terms their plain and ordinary meaning.
The Court’s analysis begins with Article 3 of the Subcontract, which states that “[Wenger]
agrees to pay [Acranom] for the work described [in Article 2 and Rider A], the total price of
$1,960,000.” (Dkt. 32-14 (Subcontract) Art. 3.) In addition to stating a “total price” for the full
scope of work defined in the Subcontract, Article 3 also contemplates that there could be additions
or deductions to both the scope and price of the Subcontract: “Payment of this amount is subject to
additions or deductions within the provisions of this Subcontract and of the other documents to which
[the] Subcontract is subject.” (Id.) Article 3 of the Subcontract does not indicate, however, which
“provisions of [the] Subcontract” or what “other documents to which this Subcontract is subject”
establish the method for adjusting the Subcontract’s price based on changes to its scope. (Id.)

18

Acranom urges the Court to find this answer in Article 4 of the Subcontract.18 In relevant
part, Article 4 states that, “[Wenger] will pay [Acranom] within fifteen (15) days after [Wenger],
as a condition precedent, receives payment from the [SCA] for [Acranom’s] items of work on the
quantities paid for by the [SCA] and on the basis and in the manner stipulated in the [Prime
Contract], (which [Acranom] shall accept as agreed) and on the basis of ninety-five (95%) percent
of the value of [Acranom’s] items of work at the prices stipulated.” (Dkt. 32-14 (Subcontract)
Art. 4.) Acranom argues that Article 4 “unambiguously provides” that “Wenger was obligated to
pay Acranom for the work it performed based on the lump sum Subcontract price from the funds
it received by the Owner.” (Pl.’s Br. (Dkt. 38) at 4-5.)19 The flaw in Acranom’s argument is that
Article 4 is ambiguous as to the proper measure of “the value of [Acranom’s] items of work at the
prices stipulated.” One reasonable interpretation of this phrase is that it refers to the value of
Acranom’s items of work at “the prices stipulated” between the SCA and Wenger. Alternatively,

18

Neither party has put forward any evidence or argument concerning what “other
documents to which the Subcontract is subject,” if any, are relevant to adjusting the Subcontract’s
price based on changes to its scope. (Dkt. 32-14 (Subcontract) Art. 3.) Under general principles
of contract interpretation, however, the Court finds that Article 3’s reference to “other documents
to which this Subcontract is subject” must be read together with the other provisions of the
Subcontract, including the merger clause set forth in Article 31, which provides that the
Subcontract “comprises the full and entire agreement between the parties,” and that “[n]o other
agreement or understanding of any nature concerning the same has been entered into or will be
recognized.” See Orchard Hill, 830 F.3d at 157 (“[A] contract should be construed so as to give
full meaning and effect to all of its provisions.” (quotation omitted)). Reading Article 3 together
with Article 31, the Court finds that Article 3’s reference to “other documents to which this
Subcontract is subject” must refer to documents that are expressly incorporated into the
Subcontract—i.e., the Prime Contract and the other documents that are incorporated into the
Subcontract via Article 1 of the Subcontract. (Dkt. 32-14 (Subcontract) Art. 1.)
19

The Court notes that, as an initial matter, it is far from clear how, if at all, Article 4
applies here, i.e., to work that was not performed by Acranom, because it was removed from the
Project’s scope, and for which Wenger is seeking a credit, i.e., an adjustment to the Subcontract
price. The Court, however, defers ruling on this issue, which the parties have not fully briefed.

19

this phrase could refer to the value of Acranom’s items of work “at the prices stipulated” between
Wenger and Acranom. Neither party has pointed to another provision of the Subcontract that
resolves this ambiguity, and the Court has found none.
As a fallback, Acranom argues that Wenger’s credit for the elimination of face brick
removal from the Project must be determined “pursuant to the ‘[Prime] Contract’ between Wenger
and the [SCA]” because the Prime Contract was incorporated into the Subcontract via Article 1.
(Pl.’s Br. at 5; see also Dkt. 32-14 (Subcontract) Art. 1 (“The [Prime Contract] . . . and all other
documents by reference forming a part of the [Prime Contract] between the [SCA] and [Wenger]
are hereinafter collectively referred to as the ‘General Contract’, which is made a part hereof. . .
.”).) Acranom points, in particular, to Article 7 of the Prime Contract, which provides:
The SCA shall determine the amount of any adjustment to the Contract price by
Change Order, including a Unilateral and/or Allowance Change Order, based on
one or more of the following methods selected by the SCA, in its sole discretion:
Accepting a lump sum amount agreed upon by both parties.
(Dkt. 39, Ex. 4 (Prime Contract), at ECF 72 § 7.01.) The Court finds, however, that these
provisions of the Prime Contract, like Articles 3 and 4 of the Subcontract, do not
unambiguously specify how to compute Wenger’s credit for the elimination of brick
removal work from the Project; instead, they address one permissible method for the SCA
to adjust the contract price of the Prime Contract. It is ambiguous, however, whether these
provisions apply only to the SCA’s credits under the Prime Contract, or also apply to
Wenger’s credits under the Subcontract by virtue of the Subcontract’s incorporation of the
Prime Contract as “a part [of]” the Subcontract itself. (Dkt. 32-14 (Subcontract) Art. 1.)
In addition to the provisions on which Acranom relies in its memorandum, the Court also
considers the significance of a provision contained in Rider A of the Subcontract. Rider A contains

20

a section titled “Unit Prices, Allowances, Alternates and Provisions.” (Dkt. 32-14 (Subcontract)
at 17.) That section states, in relevant part:
No Provision is authorized to be commenced or be performed. In order to
commence performance of any Provision, Subcontractor must receive a written
construction authorization signed by a corporate principle [sic] as well as comply
with SCA provision procedures and requirements [sic].
[...]
The following provisions are included in the base contract cost: Removal and
replacement of bricks per face replacement detail – Approximately 18,000 square feet.
(Id.) Both parties agree that this section of the contract does not specify a unit price for the
“Provision” of the Subcontract calling for the removal and replacement of approximately
18,000 square feet of face brick. (Def.’s Reply (Dkt. 35) at 3; Pl.’s Br. at 5.) Nonetheless, the
Court observes that this section of the contract may be relevant to interpreting the ambiguities
identified above in Articles 1 and 4 of the Subcontract. For example, by stating that “No
Provision is authorized to be commenced or performed . . . [without] a written construction
authorization,” this section appears to make Acranom’s face brick removal work a
provisional—i.e., contingent—part of the Subcontract. But, as noted above, Article 3 of the
Subcontract specifies a “total price” that assumes Acranom’s performance of all of the work
described in Rider A, including the provisional work, and neither Article 3 nor Rider A
specifies the value of the Subcontract without this provisional work. Thus, even assuming that
Rider A unambiguously designates the brick removal work as provisional—i.e., contingent—
the Subcontract nonetheless fails to specify unambiguously the method by which to determine
the price of Acranom’s partial performance of that provisional work.
In summary, the Court finds that Article 1, Article 3, Article 4, and Rider A of the
Subcontract are potentially relevant to the determination of Wenger’s credit for the elimination of
17,700 square feet of face brick removal from the scope of the Project. However, due to
21

ambiguities in those provisions, as described above, the Court is unable to determine the proper
method for calculating Wenger’s credit without consideration of extrinsic evidence.
B. Extrinsic Evidence
Having found material ambiguities in the Subcontract, the Court may consider extrinsic
evidence to cure those ambiguities, except that extrinsic evidence cannot be introduced to “alter
or add a provision to a written agreement.” Schron v. Troutman Sanders LLP, 986 N.E.2d 430,
433-34 (N.Y. 2013). The admission of extrinsic evidence to cure ambiguities in a complete written
agreement is an act of contract interpretation, not contract reformation. See Collins v. HarrisonBode, 303 F.3d 429, 433-35 (2d Cir. 2002); Am. Home Assur. Co. v. Merck & Co., 329 F. Supp.
2d 436, 444 (S.D.N.Y. 2004). The decision to admit extrinsic evidence does not give a court
unlimited discretion to “add or excise terms” from the agreement, “nor [to] distort the meaning of
those used and thereby make a new contract for the parties under the guise of interpreting the
writing.” Bailey v. Fish & Neave, 868 N.E.2d 956, 959 (N.Y. 2007) (quotation omitted). Rather,
the court considers the extrinsic evidence for the limited purpose of resolving a specific ambiguity
in the written agreement. See Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 36
(2d Cir. 1995) (“Extrinsic evidence is admissible only to resolve conflicting, plausible
interpretations that straddle the ambiguity of a word.”).
Here, Wenger points to three pieces of extrinsic evidence to support its proposal to use a
unit price of $65 per square foot to calculate its credit for elimination of brick removal from the
Subcontract. First, in a pre-contract email dated March 30, 2011, an Acranom project manager
provided a price quote to Wenger that was based on, among other things, a unit price of $65 per
square foot for 18,000 square feet of face brick replacement. (Dkt. 32-12 at ECF 2.) Second, in a
letter dated April 20, 2011, David Wenger notified Acranom that Wenger would “proceed with

22

drafting a contract for the work based upon [Acranom’s] March 29, 2011 quote . . . and subsequent
March 30, 2011 e-mail confirming the 18000 square foot brick removal/replacement provision unit
cost of 65/ sq.ft.” (Dkt. 32-13.) Third, according to Wenger, “Acranom’s corporate designee . . . ,
Salvatore Monarca, readily conceded at his deposition that Acranom’s regular practice is to credit
a customer for omitted work based on the bid value of the work.” (Def.’s Br. at 6.)
The problem with Wenger’s proposed extrinsic evidence is that it does not address any of
the contract ambiguities, described above, that prevent the Court from determining Wenger’s
credit based solely on the terms of the Subcontract. See Saban Entm’t, 60 F.3d at 36 (extrinsic
evidence is admissible only to cure specific ambiguities in a written agreement). The proposed
evidence does not provide any information on the parties’ intentions as to the incorporation
provisions of Article 1 of the Subcontract, nor does it elucidate the meaning of the payment
provisions of Articles 3 and 4 of the Subcontract. Indeed, the disconnect between Wenger’s
extrinsic evidence and the Subcontract’s ambiguities is not surprising, given that Wenger does not
acknowledge that any such ambiguities exists. (See generally Def.’s Br.; Def.’s Reply.)
Wenger, however, argues that its proffered extrinsic evidence should be considered “to
complete” the Subcontract on a “critical” question on which the Subcontract is “silent.” (Def.’s
Reply at 3.) Wenger argues that “[w]here . . . a valid contract is incomplete, extrinsic evidence is
admissible to complete the writing if it is apparent from an inspection of the writing that all the
particulars of the agreement are not present and that the evidence offered does not vary or
contradict the writing.” (Def.’s Reply at 3.)20 In other words, Wenger does not seek to introduce

20

The Court rejects Wenger’s suggestion that New York law allows a court to consider
extrinsic evidence whenever a contract is “silent” as to a “critical” issue (Def.’s Reply at 3), as
directly contrary to the most basic tenet of the parol evidence rule—i.e., extrinsic evidence may
not be used to “alter or add a provision to [the] written agreement.” Schron, 986 N.E.2d at 433-34;
see also In re World Trade Ctr., 754 F.3d 114, 123 (2d Cir. 2014) (noting that, under New York
23

extrinsic evidence to resolve an ambiguity in the Subcontract, but rather to fill a gap that exists in
the Subcontract on a critical issue. (Id.)
To be sure, the Second Circuit stated in In re World Trade Ctr. Disaster Site Litig. (“In re
World Trade Ctr.”), that “an omission as to a material issue can create an ambiguity,” which may be
resolved by extrinsic evidence, “where the context within the document’s four corners suggests that
the parties intended a result not expressly stated.” 754 F.3d 114, 122 (2d Cir. 2014) (quoting Hart
v. Kinney Drugs, Inc., 67 A.D.3d 1154, 1156 (N.Y. App. Div. 2009)).21 However, even assuming
the validity of this exception—which has not been adopted by the New York Court of Appeals22—

law, “[c]ourts should be ‘extremely reluctant[]’ . . . to imply a term that ‘the parties have neglected
to specifically include’”, and “‘courts may not by construction add or excise terms, nor distort the
meaning of those used and thereby make a new contract for the parties under the guise of
interpreting the writing’” (quoting Vt. Teddy Bear Co. v. 538 Madison Realty Co., 807 N.E.2d 876,
879 (N.Y. 2004) and Reiss v. Fin. Performance Corp., 764 N.E.2d 958, 961 (N.Y. 2001))); Verizon
N.Y. Inc. v. Vill. of Westhampton Beach, No. 11 Civ. 252, 2014 WL 2711846, at *9 (E.D.N.Y.
June 16, 2014) (declining to “read in” provision into parties’ franchise documents) (quoting In re
World Trade Ctr. and collecting New York cases).
21

The Court in In re World Trade Ctr. also cited three New York cases for the proposition
that, “in limited circumstances a court may supply a missing term in a contract.” 754 F.3d at 122.
The cases cited make clear, however, that the circumstances in which a court may “supply a
missing term” in a contract are, indeed, very limited, and none of those cases suggests that the
Court should “supply” a re-pricing mechanism to the Subcontract if one is not established within
the four corners of the Subcontract. See Haines v. City of N.Y., 364 N.E.2d 820, 822 (N.Y. 1977)
(where a contract required the City of New York to provide continuing maintenance to a nearby
municipality’s sewage system, but did not include a duration term, the Court could “inquire into
the intent of the parties and supply the missing term if a duration [could] be fairly and reasonably
fixed by the surrounding circumstances and the parties’ intent”); In re Bond & Mortg. Guar. Co.,
196 N.E. 313, 315 (1935) (where a contract authorized a mortgage guarantor to act as a bank’s
agent, the bank could terminate the agreement notwithstanding the absence of a termination clause
when the guarantor became insolvent and had its administration transferred to the New York
superintendent of insurance for rehabilitation); Jermyn v. Searing, 122 N.E. 706, 710 (N.Y. 1919)
(declining to “read [the agreement] in light of the purposes and objects to be accomplished,”
because “nothing can be added to or read into the agreement unless there be ambiguity which gives
play for judicial interpretation,” and “[w]e find no such ambiguity”).
22

Indeed, the New York Court of Appeals has rejected the idea that extrinsic evidence may
be considered whenever a court finds a coverage gap in a written contract, holding that, in general,
“[a]n omission or mistake in a contract,” such as the failure to “address [a] contingency . . . does
not, of itself, create an ambiguity.” Reiss v. Fin. Performance Corp., 764 N.E.2d 958, 961 (N.Y.
24

the Court cannot find, as a matter of law, that the Subcontract’s “four corners” “suggest[] that the
parties intended a result not expressly stated” in the Subcontract. For one thing, the Subcontract
expressly states that it “comprises the full and entire agreement between the parties” and “supersedes
all prior estimates and/or proposals,” which undercuts the notion that the parties intended for
Acranom’s pre-contract price quote to be incorporated into the Subcontract.

(Dkt. 32-14

(Subcontract) Art. 27(B), Art. 31.) Further, as explained above, the Court is unable to determine,
based on the present record, whether there is in fact a “silence” in the Subcontract that could
potentially be filled by extrinsic evidence of an agreement to use a $65 unit price to account for
reductions in the scope of Acranom’s face brick removal work. Indeed, depending on how the
factfinder resolves the ambiguities described above in Article 1, Article 3, Article 4, and Rider A of
the Subcontract, the factfinder may conclude that the Subcontract, or “[an]other document[] to which
the Subcontract is subject,” establishes a method to calculate Wenger’s credit for elimination of face
brick removal from the Subcontract. In short, the Court finds that Wenger’s proposed extrinsic
evidence is not admissible, at least at this stage, to cure a supposed “silence” in the Subcontract.
Nonetheless, looking ahead to trial, the Court discerns two narrow paths by which Wenger
may be able to introduce its proffered evidence. The first path is through Article 4 of the

2001); see also Vill. of Westhampton, 2014 WL 2711846, at *9 (collecting New York cases). As
the Honorable Denny Chin once explained, based on long-settled New York law, unless a written
agreement’s silence on a matter renders the contract “[un]intelligible”—i.e., unless the silence
itself causes the written terms of the agreement to be ambiguous—a court cannot use extrinsic
evidence to “supply[] a term” to fill the silence. Kirschten v. Research Inst. of Am., Inc., No. 94
Civ. 7947, 1997 WL 739587, at *10 (S.D.N.Y. Sept. 24, 1997); accord Trs. of Southampton v.
Jessup, 65 N.E. 949, 951 (N.Y. 1903) (“An ambiguity, in order to authorize parol
evidence . . . must arise out of words used in [the contract]. Such an ambiguity never arises out of
what was not written at all, but only out of what was written so blindly and imperfectly that its
meaning is doubtful.”); Nissho Iwai Eur. PLC v. Korea First Bank, 782 N.E.2d 55, 60 (N.Y. 2002)
(“[A]s with all written agreements, . . . ambiguity does not arise from silence, but from ‘what was
written so blindly and imperfectly that its meaning is doubtful’” (quoting Jessup, 65 N.E. at 951)).
25

Subcontract. As noted above, Article 4 provides, among other things, that Wenger would pay
Acranom for “items of work . . . on the basis of ninety-five (95%) percent of the value of
[Acranom’s] items of work at the prices stipulated.” (Dkt. 32-14 (Subcontract) Art. 4 (emphasis
added).) To the extent the phrase “at the prices stipulated,” which the Court finds ambiguous, is
proved to refer to prices “stipulated” between Wenger and Acranom, Wenger would be permitted
to introduce evidence of the prices “stipulated” between Wenger and Acranom, which may
potentially include the extrinsic evidence that Wenger offers here. The Court does not consider
the evidence at this stage, however, where the record evidence is insufficient to resolve the facial
ambiguity in Article 4 in Wenger’s favor.
The second potential path for Wenger’s extrinsic evidence is based on the background
principles of common law that may potentially come into play in this action, depending on the
evidence produced at trial. Given the Subcontract’s failure to unambiguously establish the method
by which to compute Wenger’s credit for the elimination of face brick removal work from the
Project’s scope, the Court or a jury may find that the parties simply did not reach a meeting of the
minds as to that method. In that scenario, the Court or a jury would need to determine whether, in
the absence of a mutual agreement concerning the method for computing Wenger’s credit, the parties
can nonetheless be said to have reached agreement on all material terms of the Subcontract. See
Madeira v. Affordable Hous. Found., Inc., 469 F.3d 219, 252-53 (2d Cir. 2006) (“Few principles are
better settled in the law of contracts than the requirement of definiteness. If an agreement is not
reasonably certain in its material terms, there can be no legally enforceable contract.” (quoting
Cobble Hill Nursing Home, Inc. v. Henry & Warren Corp., 548 N.E.2d 203, 206 (N.Y. 1989)).
Although a ruling on that issue is premature at this time, the Court observes that the method for
computing Wenger’s credit appears to be an integral part of the price term of the Subcontract, which

26

is presumably a material term of the agreement. See Tufano v. Morris, 286 A.D.2d 531, 534 (N.Y.
App. Div. 2001) (“It is well settled that the price to be paid under a contract is a material term.”
(quotation omitted)). Thus, if the parties are determined to have failed to reach an agreement on the
method for computing Wenger’s credit—which seems possible given the current record—they might
not have an enforceable contract at all. See KJ Roberts & Co. v. MDC Partners, 605 F. App’x 6, 7
(2d Cir. 2015) (affirming dismissal of breach of contract claim because “the parties never agreed to
a material term . . . namely, the ‘Adjustments’ to be applied in order to calculate [an] incentive
payment”). In that scenario, extrinsic evidence, including potentially the extrinsic evidence that
Wenger has offered here, might be admitted in order to salvage the Subcontract based on a mutual
mistake not to include a price-adjustment unit price, see N.Y. First Ave. CVS, Inc. v. Wellington
Tower Assocs., 299 A.D.2d 205, 205-06 (N.Y. App. Div. 2002); Barash v. Pa. Terminal Real Estate
Corp., 256 N.E.2d 707, 712 (N.Y. 1970), or to resolve Acranom’s claims against Wenger in noncontract terms, such as quantum meruit or unjust enrichment, see Hudson & Broad, Inc. v. J.C. Penny
Corp., 553 F. App’x 37, 40-41 (2d Cir. 2014).
C. Summary
The Subcontract does not unambiguously specify the method by which to calculate
Wenger’s credit for the elimination of 17,700 square feet of face brick removal from the scope
of the Project. Several provisions of the Subcontract—namely, Article 1, Article 3, Article 4,
and Rider A—are potentially relevant to this issue, but the extrinsic evidence that Wenger seeks
to introduce is insufficient to cure the ambiguities in those provisions as a matter of law. Further,
the extrinsic evidence is not admissible to cure a supposed “silence” in the Subcontract separate

27

and apart from a contractual ambiguity that appears from the face of the Subcontract.23
Accordingly, the Court cannot find as a matter of law that Wenger is entitled to a credit of
$1,050,000 for the elimination of 17,700 square feet of brick removal from the scope of the
Subcontract, and the first prong of Wenger’s motion is denied.
II.

Wenger’s Credit for Acranom’s Failure to Provide Payment and Performance Bonds
Wenger asks the Court to rule that Wenger is entitled to a credit of $23,769 for Acranom’s

failure to provide payment and performance bonds as required by the Subcontract. Article
27(B)(2) of the Subcontract provides that “[Acranom was required] to provide[] acceptable 100%
Payment & Performance Bonds (prerequisite for payment).”

(Dkt. 32-14 (Subcontract)

Art. 27(B).) Acranom concedes that, contrary to this requirement, Acranom did not provide
Wenger with payment and performance bonds prior to entry into the Subcontract. (Pl.’s 56.1
Response, Dkt. 40, ¶ 11.) Acranom also did not provide Wenger with payment and performance
bonds at any time during the course of the Project. (Pl.’s 56.1 Response, Dkt. 40, ¶ 11.)24

23

Moreover, even if the Court considered the March 30, 2011 email, the April 20, 2011
letter, and Monarca’s deposition testimony, the Court would not grant summary judgment to
Wenger on the first prong of its motion. The March 30, 2011 email and April 20, 2011 letter
both specify a unit price of $65 for the initial price quote that Acranom sent to Wenger before
the Subcontract was executed. But that unit price assumed a masonry job consisting of 18,000
square feet of brick removal, and neither document specifies whether and how that unit price
would change if the square footage of Acranom’s work was decreased. Likewise, neither
document suggests that the unit price of $65 would be used to make adjustments to the
Subcontract price. Monarca’s deposition testimony is insufficient as well, given that Monarca
testified, at most, that Acranom’s normal practice is to adjust its fees based on a unit price, but
never testified that the party’s agreement in this case worked in that way. Finally, all of this
extrinsic evidence would, in any event, need to be considered alongside the evidence Acranom
offers to show that, when the SCA eliminated face brick removal from the Project, a Wenger
representative prepared a written document, dated October 8, 2012, stating that Wenger’s credit
for the work reduction was only $540,000, which assumed a unit price much lower than $65.
(See Dkt. 32-16 (October 8, 2012 Change Order).)
24

Acranom argues that as “substitution for the bond, [it] agreed to allow Wenger to
withhold additional amounts otherwise due to Acranom for work performed on the Project, above
28

In their memoranda, the parties argue mainly about whether Wenger waived the payment
and performance bond requirement through its conduct. (Def.’s Br. at 8; Pl.’s Br. at 9-11; Def.’s
Reply at 5-7.) But these arguments are beside the point. Even assuming that Wenger retains a
right to enforce the bond requirement, Wenger’s motion for a credit of $23,769 has no grounding
in the law. To be sure, a breach-of-contract defendant may claim recoupment or setoff25 for the
plaintiff’s breach of the contract on which the plaintiff sues. See Bendat v. Premier Broad. Grp.,
Inc., 175 A.D.2d 536, 538-39 (N.Y. App. Div. 1991). “[H]owever, ‘a party must have a legally
subsisting cause of action upon which it could maintain an independent claim.’” Id. (quoting
Telmark, Inc. v. C&R Farms, 115 A.D.2d 966, 967 (N.Y. App. Div. 1985)). Among other things,
this means a defendant may recover a setoff for a plaintiff’s breach of contract only to the extent
that the defendant sustained damages as a result of the plaintiff’s breach. See Baskin-Robbins Inc.
v. S&N Prinja, Inc., 78 F. Supp. 2d 226, 231 (S.D.N.Y. 1999). Here, Wenger has not articulated,
let alone proved, that it sustained any damages as a result of Acranom’s failure to provide payment
and performance bonds as required by the Subcontract.26 Accordingly, the Court denies Wenger’s
motion for a credit of $23,769 based on the payment and performance bond requirement.

the 5% retainage permitted in the Subcontract, from each of the monthly requisitions as security,
payable upon completion of the work.” (Monarca Aff., Dkt. 39, ¶ 42.)
25

The Court construes Wenger’s motion for a “credit” in the amount of $23,769 as a motion
for a setoff under New York common law because Wenger does not point to any mechanism in
the Subcontract that would enable Wenger to obtain a “credit” or any other monetary offset based
on a breach of Article 27(B)(2). Wenger also does not direct the Court to any authority at common
law for recognizing a claim for a “credit” in this context.
26

Wenger contends that it should receive a credit in amount equal to the premium cost that
Acranom was quoted for the original Subcontract price. But Wenger does not suggest that
Acranom was obligated to transmit the bond premium to Wenger, nor does Wenger assert that,
when Acranom failed to obtain the bond, Wenger used its own funds to cover the failure.
29

III. Acranom’s Claims for Extra Work
Wenger asks the Court to dismiss all of Acranom’s claims for extra work denominated as
PCOs ##5, 6, 7, 8, 9, 11, 12, 13 and 14. For the following reasons, the Court grants this prong of
Wenger’s motion in its entirety.
A. Relevant Contract Provisions
Wenger claims that all of Acranom’s claims for extra work are barred by Article 19 of the
Subcontract. Article 19 provides, in relevant part, that the Subcontract price “represents the full
consideration” for Acranom’s work under the Subcontract, that “in no event shall there be any
claims for ‘extras’,” and that “[a]ny changes, modifications or extension of the work to be
performed herein may only be done by written order executed by [Acranom] and by an officer of
[Wenger].” (Dkt. 32-14 (Subcontract) Art. 19.) According to Wenger, Article 19 bars any claim
for extra work that was not expressly authorized by a written order executed by Acranom and an
officer of Wenger. (Def.’s Br. at 9; Wenger Aff., Dkt. 32-9, ¶ 10.)
The bar on extra work imposed by Article 19 is qualified by Article 20(a), which provides
a procedure for addressing disagreements between Wenger and Acranom about “extra” work
performed by Acranom during the Project. In relevant part, Article 20(a) provides that Acranom
was not barred from recovering for extra work performed on the Project, so long as Acranom kept
“complete and acceptable time and material records of its actual costs in performing said work and
present said records to a duly authorized representative of [Wenger] on a daily basis for signature.”
(Dkt. 32-14 (Subcontract) Art. 20.) Reading Article 19 and 20(a) together, the Court finds that
Article 20(a) covers Acranom’s claims for extra work to the extent that Acranom and Wenger
disagreed then, and disagree now, about whether the work that Acranom performed qualifies as

30

“extra” work, as opposed to work within the scope of the Subcontract. Of course, this means that
Article 20(a) applies to the bulk of Acranom’s claims, as discussed below.
Article 20(b) of the Subcontract is also relevant to Acranom’s claim for extra work
based on PCO #14. That provision states, in relevant part, that Acranom waives the right to
recover on any “claim[] for damages because of any claimed default, breach, delay,
interference, act or omission of [Wenger],” unless Acranom gave adequate written notice of
the claim to Wenger “within five (5) days after the occurrence of such act or omission.”
(Dkt. 32-14 (Subcontract) Art. 20.)
B. Application to PCOs
With the exception of PCO #14, which relates to a claim for damages based on project
delays, all of Acranom’s claims based on “extra” work are subject to the recordkeeping and notice
requirements of Article 20(a). Under those requirements, to have any claim of recovery for extra
work, Acranom was obligated to keep “complete and acceptable time and material records of its
actual costs in performing said work and present said records to a duly authorized representative
of [Wenger] on a daily basis for signature.” (Dkt. 32-14 (Subcontract) Art. 20.)
The Court finds as a matter of law that Article 20(a) of the Subcontract bars Acranom from
recovering on PCOs ##5, 6, 7, 8, 12, and 13. For each of those PCOs, Acranom has failed to
adduce any evidence that it sent Wenger a copy of its time and material records “on a daily basis”
for Wenger’s signature. See supra (summarizing record evidence related to Acranom’s PCOs).
However, the Court finds that the Subcontract does not bar Acranom’s extra-work claims
based on PCOs ##9 and 11. For each of those PCOs, Acranom generated a written form stating
that Acranom was “authorized to perform this additional work, which Acranom Masonry, Inc. will
be compensated for[,]” and each of those forms was signed by Chris Carpentieri, a Wenger

31

representative. (Monarca Aff., Dkt. 39, ¶ 81; Dkt. 39, Ex. 21, at ECF 190; Monarca Aff., Dkt. 39,
¶ 83; Dkt. 39, Ex. 22, at ECF 192.) Accordingly, PCOs ##9 and 11 are not subject to Article 20(a)
because Wenger conceded, in a writing signed by a Wenger representative, that the work
performed thereunder by Acranom was “extra” work.27
This leaves PCO #14, under which Acranom seeks to recover $77,099 in “added labor costs
resulting from Wenger’s failure to provide the contractually required ‘heat’ to the project.” (Dkt.
39, Ex. 26, at ECF 201.) The Court finds that this claim is barred by Article 20(b) because
Acranom has not submitted evidence showing that it provided Wenger written notice of this extrawork claim “within five (5) days after the occurrence of such act or omission.” (Dkt. 32-14
(Subcontract) Art. 20(a).) Acranom also has failed to identify any provision of the Subcontract
that Wenger breached by allegedly failing to provide “water, electrical service and heat” for
Acranom’s workers.
C. Partial Lien Waivers
As an additional ground for dismissal of the extra-work claims, Wenger contends that each
of Acranom’s claims for extra work is barred by one or more written releases. (Def.’s Br. at 9-17.)
Over the course of the Project, Wenger issued eight checks to Acranom for a total of $540,102.
(Wenger Aff., Dkt. 32-9, ¶ 22; Pl.’s 56.1 Response, Dkt. 40, ¶ 42.) Upon receipt of each of these
payments, Acranom signed a separate “Partial Waiver and Release of Lien,” which, in relevant
part, stated that “[Acranom] does hereby waive and release all . . . claims . . . on the monies or
other consideration due or to become due from Wenger Construction Co., Inc., [and] [t]he [SCA]
. . . for [the Project] on account of labor or materials or both furnished, on account, for the premises

27

However, as explained infra, Acranom’s extra-work claims based on PCOs ##9 and 11
must be dismissed pursuant to the partial lien waivers that Acranom signed upon receipt of
payments from Wenger during the course of the Project.
32

known as PS 86 of which the undersigned [Acranom] is the Supplier or Subcontractor or
Consultant as per [the Subcontract] and change orders on said premises.” (Dkt. 39, Ex. 12, at ECF
130, 135, 142, 150, 157, 163, 165.) The last of these releases was signed by Acranom on June 20,
2013. (Dkt. 39, Ex. 12, at ECF 130.)
“A release is a contract, and its construction is governed by contract law.” Kulkarni v.
Arredonda & Co., 151 A.D.3d 705, 706 (N.Y. App. Div. 2017) (quotation omitted); accord Bihag
v. A&E Television Networks, LLC, 669 F. App’x 17, 18 (2d Cir. 2016) (“Under New York law,
general releases are governed by principles of contract law.”). Accordingly, “a release that is
complete, clear, and unambiguous on its face must be enforced according to the plain meaning of
its terms.” Kulkarni, 151 A.D.3d at 706 (brackets and quotation omitted).
Applying these principles, the Court finds that each of the partial lien waivers is a complete,
clear, and unambiguous release of all claims for compensation for work performed on the Project
before the date of the release, whether the work was under the Subcontract or “change orders.”
(Dkt. 39, Ex. 12, at ECF 130.) The cases cited by Acranom on this point (Pl.’s Br. at 17-20) are
easily distinguishable. In many of those cases, the language used in the releases in question, unlike
the language in the partial lien waivers here, did not clearly and unambiguously cover “all . . .
claims . . . on the monies or other consideration due” for work performed on the project.
See Navillus Tile v. Turner Constr. Co., 2 A.D.3d 209, 210-11 (N.Y. App. Div. 2003) (releases
were “expressly limited . . . to the extent of, and as covered by, payments actually received by the
[subcontractor]” (emphasis in original)); Orange Steel Erectors, Inc. v. Newburgh Steel Prods.,
Inc., 225 A.D.2d 1010, 1011-12 (N.Y. App. Div. 1996) (releases were limited acknowledgement
of “partial” payment and “renounce[d] only plaintiff’s claims ‘upon the land and or buildings’ of
the project”). The other cases declined to enforce partial waivers where the parties’ course of

33

conduct demonstrated that the releases were not intended to extinguish the subcontractor’s right to
receive additional payments for work covered by the scope of the releases. See W. End Interiors,
Ltd. v. Aim Constr. & Contracting Corp., 286 A.D.2d 250, 252 (N.Y. App. Div. 2001); Apollo
Steel Corp. v. Sicolo & Massaro, Inc., 300 A.D.2d 1021, 1021-22 (N.Y. App. Div. 2002);
Macquesten Gen. Contracting, Inc. v. HCE, Inc., 128 F. App’x 782, 784-85 (2d Cir. 2005).
However, those cases lend no support to Acranom here, where Acranom has failed to adduce
evidence showing that Wenger and Acranom both intended for Acranom to receive additional
payments for work performed prior to the execution of each of the partial releases. Acranom’s
conclusory assertion that Wenger routinely “approved change orders for work performed in prior
months, including . . . prior [to the] execut[ion] [of a] partial lien waiver” (Monarca Aff., Dkt. 39, ¶
99) is not substantiated by anything in the record and, standing alone, is insufficient to overcome the
plain terms of the written releases. See Fed. R. Civ. P. 56(e) (party opposing summary judgment
“must set forth specific facts showing that there is a genuine issue for trial” (emphasis added));
Patterson v. Cty. of Oneida, 375 F.3d 206, 219 (2d Cir. 2004) (“No[] . . . genuine issue [is] created
merely by the presentation of assertions that are conclusory.”). Acranom also cannot overcome the
plain terms of the releases based on Wenger’s conduct in July 2014 (see Monarca Aff., Dkt. 39, ¶
101), given that Acranom had not signed a partial waiver for that period. See supra (last waiver
signed June 20, 2013). Thus, each of Acranom’s “extra work” claims that accrued prior to June 20,
2013—i.e., PCOs ## 5, 6, 7, 8, 9, 11, and 14—is barred by one or more partial lien waivers.
D. Summary
In summary, all of Acranom’s claims for extra work fail as a matter of law on one or more
grounds, as more fully explained above. Accordingly, the Court grants the third prong of Wenger’s
motion in its entirety.

34

IV. Wenger’s Credit for Payments Made
Wenger also seeks a summary judgment finding that Wenger is entitled to a credit of
$596,125.86 for payments made to Acranom or third parties on behalf of Acranom. The Court
easily grants this prong of Wenger’s motion. Acranom does not dispute that Wenger made
payments to Acranom under the Subcontract totaling $540,102. (Wenger Aff., Dkt. 32-9, ¶ 22;
Pl.’s 56.1 Response, Dkt. 40, ¶ 42.) The record further shows that Wenger made the following
payments to third-party creditors of Acranom:


Payment to the Mason Tenders Trust Fund in the amount of $45,268.72.



Payment to RKL Building in the amount of $7,591.00.



Payment to Glenwood Mason Supply in the amount of $3,062.00.



Payment to E&E Equipment in the amount of $101.20.

(Def.’s 56.1 Stmt., Dkt. 33, ¶¶ 17-20.)
Acranom does not dispute the fact that Wenger made each of these payments. (Pl.’s 56.1
Response, Dkt. 40, ¶¶ 17-20.) Acranom’s only counter to Wenger’s motion for a credit for these
payments is the assertion, stated in Acranom’s Rule 56.1 Response and Monarca’s affidavit, that
“Acranom did not authorize payments to any entity other than Acranom for Acranom’s work.” (Pl.’s
56.1 Response, Dkt. 40, ¶¶ 17-20; Monarca Aff., Dkt. 39, ¶ 104.) That assertion does not raise a
triable issue of fact as to whether Wenger’s payments to Acranom’s third-party creditors was
authorized. The record shows that Wenger’s payments to third-party creditors of Acranom was
authorized under the Subcontract, which provided, in relevant part, that “[Wenger] reserves the right
to issue joint checks and/or direct checks to Subcontractor and/or its vendors, suppliers or
subcontractors, or any of Subcontractor’s creditors having potential lien rights against the work.”

35

(Dkt. 32-14 (Subcontract) Art. 4.)28 Tellingly, Acranom did not even attempt to address this
provision of Article 4 in its memorandum opposing summary judgment. (See generally Pl.’s Br.).)
Accordingly, the Court grants Wenger’s motion for a credit under the Subcontract for
payments made to Acranom and on Acranom’s behalf, as summarized above.29
CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part Wenger’s motion for
summary judgment. The Court denies Wenger’s motion for a finding that Wenger is entitled to a
credit of $1,050,000 for the elimination of 17,700 square feet of brick removal from the scope of the
Project. The Court denies Wenger’s motion for a credit of $23,769 based on Acranom’s failure to
provide payment and performance bonds as required by the Subcontract. The Court grants Wenger’s
motion for summary judgment dismissing Acranom’s claims for extra work denominated as PCOs
##5, 6, 7, 8, 9, 11, 12, 13, and 14. The Court grants Wenger’s motion for a credit under the
Subcontract for payments made to Acranom and on Acranom’s behalf, totaling $596,124.20.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: Brooklyn, New York
September 29, 2017

28

Acranom also expressly authorized Wenger to make payments on Acranom’s behalf to
E&E Equipment, RKL Building, and the Bricklayer’s Union, in a letter dated November 27, 2013,
a copy of which was attached to Acranom’s own complaint in this action. (Dkt. 1 at ECF 8-9.)
29

The Court calculates that Wenger’s credit for these payments is $596,124.20, which it
reaches by adding the total of direct payments made to Acranom ($540,102) with the payments of
$45,269.00, $7,591.00, $3,062.00, and $101.20. See supra. This calculation is $1.66 lower than
the calculation Wenger submitted in its motion papers. Given that these calculations relate merely
to a credit under the Subcontract and will not result in the exchange of money between the parties
as a result of this Order, the Court trusts the parties to determine the correct amount of Wenger’s
credit for payments already made and apply that correct amount going forward in the litigation,
subject to a separate motion in limine to resolve any disagreement on this issue.
36