NASDI LLc v. Skanska Koch Inc. Kiewit Infrastructure Co. (JV)

Filing 111

OPINION AND ORDER re: 86 FIRST MOTION for Reconsideration filed by NASDI LLC. NASDI's October 13, 2020 motion for reconsideration is denied. The case will proceed to trial on SKK's counterclaim for indemnification, and on the damages for its counterclaim for breach of contract. (Signed by Judge Denise L. Cote on 11/15/2022) (vfr)

Case 1:17-cv-03578-DLC-SLC Document 111 Filed 11/15/22 Page 1 of 14

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
NASDI LLC,
:
:
Plaintiff,
:
:
-v:
:
SKANSKA KOCH INC. KIEWIT
:
INFRASTRUCTURE CO. (JV) d/b/a SKANSKA :
KIEWIT JV,
:
:
Defendants.
:
:
-------------------------------------- X

17cv3578 (DLC)
OPINION AND ORDER

APPEARANCES:
For plaintiffs:
Mark L. McAlpine
Douglas W. Eyre
Thomas H. Trapnell
McAlpine PC
3201 University Drive, Ste 100
Auburn Hills, MI 48326
Adam David Cole
Chipman Brown Cicero & Cole, LLP
501 Fifth Avenue
15th Floor
New York, NY 10017
For defendants:
Paul Gordon Monte
Melissa Salsano
Peckar & Abramson, P.C.
41 Madison Avenue
New York, NY 10010
DENISE COTE, District Judge:
NASDI LLC (“NASDI”) has moved for reconsideration of the
Opinion of September 28, 2020 granting defendant Skanska Koch

Case 1:17-cv-03578-DLC-SLC Document 111 Filed 11/15/22 Page 2 of 14

Inc. Kiewit Infrastructure Co. (JV)’s (“SKK”) motion for summary
judgment on NASDI’s claims and its counterclaims.

For the

following reasons, the motion for reconsideration is denied.
Background
The Court assumes familiarity with its prior Opinion in
this case, and summarizes only the facts necessary to decide
this motion.

NASDI LLC v. Skanska Koch Inc. Kiewit

Infrastructure Co. (JV), 17CV03578, 2020 WL 5768319 (S.D.N.Y.
Sept. 28, 2020).

In 2013, the Port Authority of New York and

New Jersey (the “Port Authority”) selected SKK as its general
contractor to demolish and reconstruct the Bayonne Bridge,
connecting Staten Island to Bayonne, New Jersey.

In July of

2013, SKK hired NASDI to perform the demolition work on the
project, for a total payment of approximately $20 million.
The agreement between NASDI and SKK (the “Subcontract”)
contained detailed provisions in Article 7 providing a process
through which the parties could submit a claim for “extra or
additional compensation in money, extension of time . . . or
other relief arising under or relating to the Subcontract.”
Pursuant to Article 7, the claimant would have to submit a claim
no more than 24 hours after it arose, and would have to provide
updates regarding pending claims every 30 days.

The Subcontract

required “strict compliance” with the claim procedure, stating
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that a failure to comply would be “conclusively deemed to be a
waiver” of the claim.
The Subcontract also contained a “no damages for delay”
clause, which states that the Subcontractor “shall have no Claim
against [SKK] for any loss or damage it may sustain through
delay, disruption, suspension, stoppage, interference,
interruption, compression, or acceleration of the
Subcontractor’s Work.”

The clause also provides that, even if

SKK is found independently liable for delay, any damages would
be governed by Article 7’s claim procedure.
The reconstruction of the Bayonne Bridge proceeded in four
phases.

NASDI was required to work during phases 1, 2, and 4.

Phase 4 of the bridge restoration was delayed by almost two
years.

In June of 2016, before phase 4 began, NASDI submitted a

claim (the “June Claim”) for additional costs it estimated it
would incur because of the delay.

SKK submitted the June Claim

to the Port Authority, which indicated that it would likely
enter into an aggregate settlement with SKK, and that SKK would
then be responsible for compensating its subcontractors.

On

December 21, 2016, NASDI agreed to a schedule that would have it
begin work on phase 4 on February 22, 2017.

On December 30,

2016, however, NASDI demanded a settlement of its June Claim,
suggesting that it would refuse performance if its demands were

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not met.

SKK emphasized that it was still a long way from a

final settlement with the Port Authority, but nevertheless
provided a “preliminary review” of the June Claim, determining
that, in total, NASDI owed SKK approximately $733,000.
On February 17, NASDI provided SKK with a Notice of
Termination, asserting that SKK had abandoned the Subcontract,
and that NASDI would therefore refuse to perform under it.
After further communications, NASDI attempted to rescind its
termination letter on February 23, while also demanding
immediate payment of nearly $2 million.

SKK did not consider

NASDI’s rescission of its termination letter effective, however,
especially as the date on which work on phase 4 was supposed to
begin had already passed.

SKK therefore hired another company

to complete part of NASDI’s work for phase 4 at a cost of
approximately $24 million, and then itself completed the rest of
NASDI’s work, adding another $24 million in costs.
NASDI filed this action on May 12, 2017, bring claims for
breach of contract, quantum meruit, and breach of the covenant
of good faith and fair dealing.

On February 28, 2020, SKK moved

for summary judgment on NASDI’s claims, as well as its
counterclaims for costs associated with covering NASDI’s breach.
The case was reassigned to this Court on April 23.

An Opinion

of September 28, 2020 granted summary judgment to SKK on NASDI’s

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claims and SKK’s counterclaims, leaving for trial the issue of
SKK’s counterclaim for indemnification, and a determination of
damages on its counterclaim for breach of contract.

Id. at *18.

On October 13, 2020, NASDI moved for reconsideration of the
September 28 Opinion’s grant of summary judgment on its claims
of quantum meruit and breach of the covenant of good faith and
fair dealing.

The motion for reconsideration became fully

briefed on November 20, 2020.

On December 4, 2020, NASDI filed

a letter requesting a stay of proceedings, because an
involuntary Chapter 7 bankruptcy petition had just been filed
against it.

A stay was promptly entered.

Roughly two years

later, on November 3, 2022, NASDI filed a letter indicating that
the bankruptcy proceedings had been dismissed.

The stay was

lifted on November 4.
Discussion
NASDI has moved to reconsider the September 28 Opinion.
The standard for granting a motion for reconsideration is
“strict.”

Cho v. Blackberry Ltd., 991 F.3d 155, 170 (2d Cir.

2021) (citation omitted).

A motion for reconsideration is “not

a vehicle for relitigating old issues, presenting the case under
new theories, securing a rehearing on the merits, or otherwise
taking a second bite at the apple.”

Analytical Surv., Inc. v.

Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (citation
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omitted).

“A party may . . . obtain relief only when the party

identifies an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear
error or prevent manifest injustice.”

Cho, 991 F.3d at 170.

The decision to grant or deny the motion for reconsideration
rests within “the sound discretion of the district court.”
Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir. 2009) (citation
omitted).
Through its motion for reconsideration, NASDI challenges
the findings in the September 28 Opinion that SKK was entitled
to summary judgment on its counterclaim that NASDI breached the
Subcontract, and on NASDI’s claim for quantum meruit, arguing
that SKK had abandoned the Subcontract through the unreasonable
delay of stage 4 work by almost two years.

Finally, NASDI seeks

reinstatement of its claim that SKK breached the covenant of
good faith and fair dealing in making its calculation of the
amount NASDI might receive in a global settlement of delay
claims with the Port Authority.
NASDI argues in particular that the September 28 Opinion
was wrongly decided because: 1) New York law supports a finding
that SKK abandoned the Subcontract; 2) NASDI submitted evidence
showing that the delays were uncontemplated by the parties at
the time of contracting; 3) NASDI’s expert report should have

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been considered at summary judgment to support its argument that
the Subcontract had been abandoned; and 4) NASDI submitted
evidence showing that SKK acted in bad faith in refusing to
settle NASDI’s claim.
I.

Each of these arguments is unavailing.

Abandonment
NASDI argues that the Subcontract’s no-damages-for-delay

clause does not bar its quantum meruit claim because, by phase
4, SKK had abandoned the Subcontract.

This argument was raised

in connection with the briefing of the summary judgment motions,
and was already rejected.
12.

NASDI LLC, 2020 WL 5768319, at *10–

As the September 28 Opinion found:
In support of its argument that SKK abandoned the
Subcontract NASDI cites nothing more than the fact of
delay itself. NASDI does not point to any
manifestation by SKK of any intent to relinquish the
Subcontract. It offers no evidence that SKK did not
intend to complete the Project, including the
demolition work required in Stage 4.

Id. at *10.
While NASDI now cites to a document dated June 22, 2015
authored by SKK, it also acknowledges that neither party
submitted the document to the Court in connection with the
summary judgment motions practice.

It is unnecessary therefore

to discuss the document.
Furthermore, even if the contract had been abandoned, NASDI
has not shown that it is entitled to reconsideration of its
quantum meruit claim.

A claim of quantum meruit generally
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allows a party to recover the “fair and reasonable value of
services rendered.”

Universal Acupuncture Pain Servs., P.C. v.

Quadrino & Schwartz, P.C., 370 F.3d 259, 263 (2d Cir. 2004).

An

action for quantum meruit is not available, however, “if the
parties have a valid, enforceable contract that governs the same
subject matter as the quantum meruit claim.”

Mid-Hudston

Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp., 418
F.3d 168, 175 (2d Cir. 2005).

NASDI cannot recover in quantum

meruit for the delay in the initiation of phase 4 because, as
the September 28 Opinion explained, it presented no evidence
that it performed any work in preparation for phase 4.
LLC, 2020 WL 5768319, at *12.

NASDI

Accordingly, NASDI has nothing to

recover.
NASDI nevertheless argues that the September 28 Opinion
should be reconsidered because New York law does not require
parties to terminate a contract in order to abandon it.
September 28 Opinion never says otherwise.

But the

It found that SKK

had not abandoned the contract because it had made payments and
scheduled work pursuant to it.

See id. at *10–12.

Indeed, as

the September 28 Opinion found, “SKK has provided uncontradicted
evidence of its commitment to the Subcontract.”

Id. at *11.

NASDI also argues that the intent of the parties is not
relevant to proof of abandonment, and that it only needed to

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provide evidence of any one of the four exceptions to the
enforceability of no-damages-for-delay clauses articulated in
Bovis Lend Lease LMB Inc. v. GCT Venture, Inc., 775 N.Y.S.2d
259, 259–60 (1st Dep’t 2004).

But only one such exception

relates to abandonment, and that exception requires “intentional
abandonment of the contract.”

Id. (emphasis added).

Additionally, as explained below, NASDI has not established that
the no-damages-for-delay clause has been rendered unenforceable
due to “uncontemplated delays.”

Id.

Accordingly, the September

28 Opinion need not be reconsidered.
II.

Uncontemplated Delay
NASDI argues that its claim for quantum meruit should be

reinstated for a second reason.

It contends that the

Subcontract’s no-damages-for-delay clause is not enforceable,
because the delay before phase 4 work began was unreasonable or
unforeseeable.

But, as explained above, even if the no-damages-

for-delay clause were unenforceable, NASDI could not recover on
its quantum meruit claim.

NASDI cannot recover for any damages

caused by the delay before phase 4, because it did not provide
evidence that it performed any work in preparation for phase 4.
In any event, a no-damages-for-delay clause may be
unenforceable when damages are caused by “uncontemplated
delays.”

Id. at 260.

NASDI did not rely on this argument in

its summary judgment briefing, however, and the argument
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therefore need not be considered here.
5768319, at *10 n.9.

See NASDI LLC, 2020 WL

Regardless, NASDI has not met its “heavy

burden” of establishing that any delays were so severe as to
render the no-damages-for-delay clause unenforceable.

See Dart

Mech. Corp. v. City of New York, 891 N.Y.S.2d 76, 77 (1st Dep’t
2009).
The primary evidence that NASDI offers in favor of its
argument is the fact of the delay itself.

But this evidence

does not show that the delay was uncontemplated.

NASDI also

cites a White Paper in which SKK explains, less than a year
after NASDI began its work, that the bridge reconstruction
project was poorly planned and afflicted by multiple delays.
But “inept administration or poor planning . . . does not negate
application of the ‘no damages for delay’ provisions.”

LoDuca

Assocs., Inc. v. PMS Constr. Mgmt. Corp., 936 N.Y.S.2d 192, 192
(1st Dep’t 2012) (citation omitted).
the length of the delay.

Finally, NASDI emphasizes

But “the length of the delay” alone

does not transform a contemplated delay into an uncontemplated
one.

Id.

New York courts have previously found delays of

similar or greater length insufficient as a matter of law to
render unenforceable a no-damages-for-delay clause.

See, e.g.,

Commercial Elec. Contractors, Inc. v. Pavarini Constr. Co., 856

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N.Y.S.2d 46, 317 (1st Dep’t 2008) (8-20 month delay); Dart
Mechanical Corp., 891 N.Y.S.2d at 76 (32-month delay).
III. The Riggs Report
In a final argument in support of the reinstatement of its
quantum meruit claim, NASDI contends that the September 28
Opinion improperly refused to consider a report from NASDI
witness Richard Riggs (the “Riggs Report”).

Riggs purported to

offer an expert opinion relevant to the issues of abandonment
and uncontemplated delay.

The Riggs Report states that NASDI’s

work changed significantly from the work the Subcontract
initially ordered it to perform, and therefore concludes that
the Subcontract was abandoned.

NASDI argues that the September

28 Opinion improperly rejected this opinion on the basis that it
was unsworn.
A court need not consider an unsworn letter submitted to
oppose summary judgment.

See United States v. All Right, Title

& Interest in Real Prop. & Appurtenances, 77 F.3d 648, 657–58
(2d Cir. 1996).
contrary.

The authority NASDI cites is not to the

Cf. Capobianco v. City of New York, 422 F.3d 47, 55

(2d Cir. 2005) (explaining that “[a]s a general matter, it is
correct that unsworn letters from physicians generally are
inadmissible hearsay that are an insufficient basis for opposing
a motion for summary judgment,” but permitting letters anyway

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because the defendants had already submitted them with their
motion).
Regardless, NASDI’s arguments regarding the Riggs Report
were already considered and rejected in the September 28
Opinion.

They need not be reconsidered here.

As the September

28 Opinion explained, the Riggs Report does not support a
finding that SKK abandoned the Subcontract.
5768319, at *11–12.

NASDI LLC, 2020 WL

The Riggs Report details several changes

made during phases 1 and 2, focusing particularly on the removal
of the sidewalk demolition, and the sequencing change in the
demolition of the bridge’s approach structure.

The Riggs Report

then concludes that these “amounted to a cardinal change” of the
Subcontract.

But that conclusion is not explained, and

regardless does nothing to support a finding of abandonment.
The Riggs Report does not address the many ways in which the
parties continued to operate under the Subcontract, both before
and after phases 1 and 2, and does not otherwise address issues
relevant to the standard for determining whether a contract has
been abandoned.
43. 1

See EMF Gen. Contracting Corp., 774 N.Y.S.2d at

The September 28 Opinion therefore appropriately found that

The Riggs Report also does not speak to whether the no-damagesfor-delay clause was rendered unenforceable by “uncontemplated
delays,” as it does not discuss why phase 4 was delayed.
1

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the Riggs Report did not preclude summary judgment against
NASDI’s claims.
IV.

Good Faith and Fair Dealing
Finally, NASDI moves to reconsider the September 28

Opinion’s grant of summary judgment against its claim that SKK
acted in bad faith in refusing to provide NASDI funds from its
settlement with the Port Authority.

As evidence of bad faith,

NASDI points to SKK’s internal revisions of its assessment of
NASDI’s claims, the fact that it considered providing NASDI an
incentive payment but then decided not to, the fact that SSK
ended up paying far more for phase 4 than it would have paid
NASDI, and evidence suggesting that SSK knew that NASDI’s
completion of phase 4 would likely come at a net loss to NASDI.
None of these facts suggests bad faith on the part of SKK.
As the September 28 Opinion explained, SKK explained in detail
its calculation that it did not owe money to NASDI, and NASDI
has pointed to nothing in that calculation suggesting bad faith.
NASDI LLC, 2020 WL 5768319, at *17.

Nor does the fact that SKK

revised its internal estimate downward support NASDI’s claim,
particularly where NASDI has failed to point to any specific
revision that it contends indicates bad faith.

Id.

NASDI also

argues that SKK acted in bad faith because it ended up having to
pay significantly more to complete phase 4 than it would have
paid NASDI, and because it considered paying NASDI a $7 million
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