Opinion
6:17-CV-06365 EAW
2023-03-28
The PIKE COMPANY, INC., Plaintiff, v. UNIVERSAL CONCRETE PRODUCTS, INC., Defendant. Marist College, Plaintiff-Intervenor, v. Universal Concrete Products, Inc., Defendant.
Chad W. Flansburg, Mark J. Moretti, Phillips Lytle LLP, Rochester, NY, David J. McNamara, Jeffrey D. Coren, Erin C. Borek, Jacob S. Sonner, Phillips Lytle LLP, Buffalo, NY, for Plaintiff. David J. McNamara, Jeffrey D. Coren, Erin C. Borek, Jacob S. Sonner, Phillips Lytle LLP, Buffalo, NY, Mark J. Moretti, Phillips Lytle LLP, Rochester, NY, for Plaintiff-Intervenor. David B. Ermine, Pro Hac Vice, McNelly Law Group, Havertown, PA, Kelly Ann Geary, Theodore M. Baum, Siddharth Bahl, McElroy Deutsch Mulvaney & Carpenter, LLP, Rochester, NY, for Defendant.
Chad W. Flansburg, Mark J. Moretti, Phillips Lytle LLP, Rochester, NY, David J. McNamara, Jeffrey D. Coren, Erin C. Borek, Jacob S. Sonner, Phillips Lytle LLP, Buffalo, NY, for Plaintiff. David J. McNamara, Jeffrey D. Coren, Erin C. Borek, Jacob S. Sonner, Phillips Lytle LLP, Buffalo, NY, Mark J. Moretti, Phillips Lytle LLP, Rochester, NY, for Plaintiff-Intervenor. David B. Ermine, Pro Hac Vice, McNelly Law Group, Havertown, PA, Kelly Ann Geary, Theodore M. Baum, Siddharth Bahl, McElroy Deutsch Mulvaney & Carpenter, LLP, Rochester, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
BACKGROUND
Plaintiff The Pike Company, Inc. ("Pike") commenced this action against defendant Universal Concrete Products, Inc. ("UCP") on May 4, 2017, alleging claims for breach of contract and unjust enrichment, stemming from work UCP performed as a subcontractor on the campus at Marist College ("Marist"), located in Poughkeepsie, New York, for a project on which Pike served as the contractor. (See Dkt. 1; Dkt. 1-1). UCP also asserted counterclaims, including for breach of contract, against Pike. (See Dkt. 30).
Marist filed a motion to intervene and file an intervenor complaint (Dkt. 18), which was granted on January 8, 2018 (Dkt. 25). Marist's intervenor complaint sought a declaration that "there exists no contractual or equitable relationship between Marist College and UCP." (Dkt. 26 at 4). UCP asserted various counterclaims against Marist. (Dkt. 30).
The matter proceeded to trial on July 11, 2022. In advance of trial, the parties stipulated that only the following claims would be tried before the jury: Pike's first, second, and third causes of action against UCP for breach of contract; UCP's counterclaim against Pike for breach of contract; and UCP's counterclaims against Marist for breach of contract and alternatively that it was a third-party beneficiary to the contract between Pike and Marist. (Dkt. 146). During the trial, Pike withdrew its first and second causes of action for breach of contract against UCP. Thereafter, on July 21, 2022, the parties communicated to the Court that UCP had agreed to discontinue with prejudice its claims against Marist. (Dkt. 149). As a result, only Pike's third cause of action for breach of contract against UCP and UCP's counterclaim against Pike for breach of contract were submitted to the jury.
On July 25, 2022, the jury returned a verdict in favor of UCP, and awarded compensatory damages in the amount of $1,886,585.63. (See Dkt. 169; Dkt. 170). Familiarity with the evidence presented at trial, as well as with the prior proceedings in this matter, is assumed for purposes of the instant Decision and Order.
On August 22, 2022, UCP filed a motion to alter the judgment pursuant to Federal Rule of Civil Procedure 59(e), seeking pre- and post-judgment interest on the aforementioned compensatory damages. (Dkt. 175). Pike responded to the motion on September 21, 2022 (Dkt. 182), and UCP filed a reply on October 17, 2022 (Dkt. 183).
Pike also filed a motion to alter the judgment, citing to Rules 50, 52, 58, and 59 of the Federal Rules of Civil Procedure, and asking that the Court: (1) grant judgment as a matter of law dismissing UCP's counterclaim for breach of contract; (2) grant an order of remittitur altering or amending the judgment to reduce the amount of damages; (3) vacate the judgment and award a new trial; and (4) enter judgment in favor of Pike on Pike's fourth cause of action for unjust enrichment. (Dkt. 177). UCP filed a response on September 21, 2022 (Dkt. 181), and Pike replied on October 17, 2022 (Dkt. 184).
The Court heard oral argument on the parties' post-verdict motions on March 1, 2023, and reserved decision. (Dkt. 188).
For the reasons that follow, the Court grants in part and denies in part UCP's motion seeking pre- and post-judgment interest and denies Pike's post-verdict motion in its entirety.
DISCUSSION
I. Pike's Motion
A. Legal Standard
As noted above, Pike cites Rules 50, 52, 58, and 59 in support of its post-verdict motion. (See Dkt. 177-55 at 5). The Court accordingly discusses the legal standard under each of these Rules below.
Pursuant to Rule 50, the Court may grant a motion for judgment as a matter of law in a jury trial if it finds "that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party" opposing the request. Fed. R. Civ. P. 50(a). The same standard applies where, as here, a party renews its request for judgment as a matter of law after the trial is complete. See Fed. R. Civ. P. 50(b).
"In ruling on a motion for judgment as a matter of law, the court may not itself weigh credibility or otherwise consider the weight of the evidence; rather, it must defer to the credibility assessments that may have been made by the jury and the reasonable factual inferences that may have been drawn by the jury." Williams v. Cnty. of Westchester, 171 F.3d 98, 101 (2d Cir. 1999); see also Stevens v. Rite Aid Corp., 851 F.3d 224, 228 (2d Cir. 2017) ("Judgment as a matter of law may not properly be granted under Rule 50 unless the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in his favor." (citation and alteration omitted)). Accordingly, the Court may not grant judgment as a matter of law unless "(1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded persons could not arrive at a verdict against it." Williams, 171 F.3d at 101 (alterations omitted and quoting Cruz v. Local Union No. 3 of the Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1154 (2d Cir. 1994)); see also Wierzbic v. Howard, 331 F.R.D. 32, 45 (W.D.N.Y. 2019) ("In ruling on a motion for judgment as a matter of law, the motion will be granted only if (1) there is a complete absence of probative evidence to support a verdict for the non-movant or (2) the evidence is so strongly and overwhelmingly in favor of the movant that reasonable and fair minded men in the exercise of impartial judgment could not arrive at a verdict against him." (quotation and alteration omitted)), aff'd, 836 F. App'x 31 (2d Cir. 2020). This "standard places a particularly heavy burden on the movant where, as here, the jury has deliberated in the case and actually returned its verdict in favor of the non-movant." Morse v. Fusto, 804 F.3d 538, 546 (2d Cir. 2015) (quotations omitted).
Rule 52 governs the Court's issuance of findings and conclusions in "an action tried on the facts without a jury or with an advisory jury," Fed. R. Civ. P. 52(a)(1), while Rule 58 sets forth the procedures for entry of judgment, Fed. R. Civ. P. 58. Although Pike does not clarify in its memorandum of law why it has cited to Rules 52 and 58, the Court presumes these citations are related to Pike's request that the Court enter judgment on Pike's unjust enrichment claim.
Rule 59 permits the Court to order a new trial where the verdict was against the weight of the evidence. "As a general matter, a motion for a new trial should be granted when, in the opinion of the district court, the jury has reached a seriously erroneous result or the verdict is a miscarriage of justice." DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 133 (2d Cir. 1998) (quotation and alterations omitted); see also Farrior v. Waterford Bd. of Educ., 277 F.3d 633, 635 (2d Cir. 2002) ("[A] decision is against the weight of the evidence, for purposes of a Rule 59 motion, if and only if the verdict is seriously erroneous or a miscarriage of justice[.]"). "Rule 59(a) . . . has a less stringent standard than Rule 50 in two significant respects: (1) a new trial under Rule 59(a) may be granted even if there is substantial evidence supporting the jury's verdict, and (2) a trial judge is free to weigh the evidence himself, and need not view it in the light most favorable to the verdict winner." Manley v. AmBase Corp., 337 F.3d 237, 244-45 (2d Cir. 2003) (quotations and citation omitted). "The legal standard for granting a new trial under Rule 59(a) calls for deference to jury determinations while affording discretion to the trial judge to order a new trial in the event of manifest injustice." Top Ridge Invs., LLC v. Anichini, Inc., No. 5:16-CV-76, 2018 WL 11419657, at *1 (D. Vt. May 7, 2018). Whether to grant a new trial under Rule 59 is entrusted to the Court's discretion. See Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 261 (2d Cir. 2002) ("This court reviews the grant of a new trial on the ground that the verdict was against the weight of the evidence for abuse of discretion.").
Pike also seeks remittitur pursuant to Rule 59. The Second Circuit has explained:
The district court has authority to enter a conditional order of remittitur, compelling a plaintiff to choose between reduction of an excessive verdict and a new trial, in at least two distinct kinds of cases: (1) where the court can identify an error that caused the jury to include in the verdict a quantifiable amount that should be stricken, and (2) more generally, where the award is intrinsically excessive in the sense of being greater than the amount a reasonable jury could have awarded, although the surplus cannot be ascribed to a particular, quantifiable error.Kirsch v. Fleet St., Ltd., 148 F.3d 149, 165 (2d Cir. 1998) (quotations and alterations omitted). The Court's ability to enter a conditional order of remittitur derives from its discretion to order a new trial. See Lore v. City of Syracuse, 670 F.3d 127, 176-77 (2d Cir. 2012) ("It is well established that the trial judge enjoys 'discretion to grant a new trial if the verdict appears to the judge to be against the weight of the evidence,' and that 'this discretion includes overturning verdicts for excessiveness and ordering a new trial without qualification, or conditioned on the verdict winner's refusal to agree to a reduction (remittitur).' " (alterations omitted and quoting Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 433, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996)); see also Phelan v. Local 305 of United Ass'n of Journeymen, & Apprentices of Plumbing & Pipefitting Indus. of U.S. & Canada, 973 F.2d 1050, 1064 (2d Cir. 1992) ("[T]he court should not decrease damages based on its belief that they are excessive without affording the option of a new trial . . . . Accordingly, we conclude that the magistrate judge erred in reducing the jury's award of punitive damages without giving plaintiffs the option of a new trial."); Kline v. Wolf, 702 F.2d 400, 405 (2d Cir. 1983) ("a court ordinarily may not order a remittitur with respect to a verdict in a plaintiff's favor without affording him the alternative of a new trial"). As discussed more fully below, Pike contends that the jury committed errors in this case that caused it to include quantifiable excessive amounts in the damages award, and that remittitur is accordingly warranted.
B. UCP's Breach of Contract Claim
In order to analyze Pike's motion with respect to UCP's breach of contract claim, it is necessary to briefly summarize the breach of contract theories presented by UCP at trial. Under New York law—which governs in this diversity action—"a breach of contract claim has four elements: (1) a contract; (2) performance of the contract by one party; (3) breach by the other party; and (4) damages." Miller v. Great Lakes Med. Imaging, LLC, 527 F. Supp. 3d 492, 499 (W.D.N.Y. 2021) (quotation omitted). In this case, UCP argued to the jury that Pike breached the Master Subcontract Agreement (the "MSA") between UCP and Pike by failing to pay UCP for work that it performed thereunder. UCP identified two different ways in which it claimed to have been damaged. UCP described its "primary claim" as being for the unpaid subcontract balance, the "amount of the subcontract minus what it had been paid." (Dkt. 174 at 13). The "second part" of UCP's damage request related to 31 change order requests submitted by UCP to Pike on the Marist College project. (Id. at 23-24). At trial, the number of change orders as to which UCP sought damages was reduced to 29. (See Dkt. 177-55 at 17 n.3).
Specifically, UCP did not pursue damages relative to change order requests 2 and 12.
During the trial, Pike moved for judgment as a matter of law pursuant to Rule 50(a) on UCP's breach of contract claim. Pike noted that "[u]nder New York law, which applies here, judgment as a matter of law is appropriate if the contract language is unambiguous." (Dkt. 164 at 7 at 8) (citing Photopaint Techs., LLC v. Smartlens Corp., 335 F.3d 152, 160 (2d Cir. 2003)). Pike went on to argue that the evidence presented at trial demonstrated that it appropriately deducted and withheld from the amount due to UCP $815,123.09 that it paid its subcontractors "to accelerate their work and to mitigate the delay caused by UCP," and that it had "presented detailed evidence of additional payroll costs and expenses incurred by Pike, totaling more than $470,000, due to UCP's delay." (Id. at 8-9). As to the change order requests, Pike argued that they had been "properly rejected pursuant to the MSA" and that it accordingly could not be held liable for not paying any amounts purportedly due thereunder. (Id. at 9-10).
In its post-verdict motion, Pike purports to incorporate the arguments made in its Rule 50(a) motion as a basis for the Court to grant judgment as a matter of law in its favor on UCP's breach of contract claim. (See Dkt. 177-55 at 8-9). However, at oral argument, when asked by the Court whether Pike was asking that the Court find as a matter of law that Pike had not breached its contract with UCP, Pike's counsel replied that Pike was not arguing that the Court should upset the jury's determination on that factual issue. Further, the arguments set forth in Pike's post-verdict motion as to UCP's breach of contract claim are directed entirely to the amount of damages awarded by the jury.
Thus, while not defined with precision in its motion papers, it seems apparent that Pike is not seeking an entry of judgment in its favor on UCP's breach of contract claim. Nonetheless, to the extent it remains unclear as to whether Pike is seeking such relief, the Court easily concludes that it is not warranted. As Pike made clear in its Rule 50(a) motion, its argument that it owed nothing to UCP for the work UCP performed under the MSA turned in large part on its contention that UCP had caused it to incur nearly $1.3 million in additional costs and expenses. (Id. at 8-9). The jury plainly was unpersuaded that UCP caused any delay that in turn caused Pike to incur such additional costs and expenses, inasmuch as it found against Pike on its breach of contract claim and awarded Pike no damages. (Dkt. 170 at 1). Pike has articulated no argument as to why this was an impermissible conclusion for the jury to draw, and the parties presented competing expert testimony on this precise point. "[I]t is solely for the jury to weigh and assess the credibility of dueling experts." Katt v. City of New York, 151 F. Supp. 2d 313, 351 (S.D.N.Y. 2001) (denying post-verdict motion for judgment as a matter of law where jurors were called upon to assess credibility of competing expert testimony), aff'd in part sub nom. Krohn v. NYC Police Dep't, 60 F. App'x 357 (2d Cir. 2003), and aff'd sub nom. Krohn v. NYC Police Dep't, 372 F.3d 83 (2d Cir. 2004).
Pike's argument that UCP could not prevail on its breach of contract claim because its "sole remedy under the contract for purported delays caused by others was an extension of time for UCP to complete its work" (Dkt. 177-55 at 27) misses the mark. UCP's breach of contract claim was not premised on damages caused by delays, but on Pike's failure to pay UCP the amount due and owing under the MSA. It was Pike that asserted that it was excused from its payment obligations due to UCP's delay, and the jury (as noted above) reasonably rejected that argument. Further, Pike's contention that "UCP's claimed delays in the erection of panels for the Marist Project, purportedly caused by others, are not a valid excuse for its nonperformance under the contract" (id.) is merely an attempt to relitigate factual issues resolved by the jury. As previously explained, the evidence of record was mixed—including competing experts—as to the cause and effect of various delays, and the jury was fully entitled to resolve this issue in UCP's favor.
Pike's post-verdict submission, which focuses on alleged errors the jury made in its damages calculation, falls far short of demonstrating that no reasonable jury could have concluded that Pike breached its contract with UCP, and Pike is accordingly not entitled to judgment as a matter of law in its favor. Nor is the Court persuaded that the jury's conclusion that Pike breached the MSA was against the weight of the evidence such that a new trial is warranted on the issue.
However, Pike has made a far more robust argument with respect to its request for remittitur or a new trial related to damages, which requires more detailed consideration by the Court. As discussed above, the damages sought by UCP on its breach of contract claim fell into two general categories: (1) the unpaid subcontract balance; and (2) payment for the 29 change orders. Pike makes distinct arguments as to each of these categories, which the Court carefully considers below.
1. The Unpaid Subcontract Balance
Turning first to the unpaid subcontract balance, Pike contends that: (1) undisputed evidence, as reflected in unsigned change order 3, dated August 12, 2016, demonstrates that Pike paid UCP's subcontractor American Iron and Ironworkers Union Local 417 ("Local 417") a total of $349,668.00 for work within UCP's scope performed in June and July of 2016; (2) undisputed evidence, as reflected in unsigned change order 4, dated November 18, 2016, demonstrates that Pike paid American Iron a total of $28,756.05 for work within UCP's scope performed in August of 2016; (3) undisputed evidence shows that Pike made a retention payment of $115,551.23 to American Iron on UCP's behalf to close out UCP's sub-subcontract with American Iron; and (4) undisputed evidence shows that Pike paid American Iron a total of $39,321.00 to settle additional work orders ("AWOs") submitted by American Iron to UCP.
Unsigned change order 3 actually reflects a contract sum decrease of $349,667.73 (see Dkt. 177-11 at 2), which Pike has apparently rounded to $349,668.00.
Pike also argues that change order requests 16-27 concerned a portion of the same AWOs by American Iron that Pike paid directly. The Court considers this argument in connection with the jury's damages calculation on the change order requests.
The Court notes as an initial matter that under New York law, "if a general contractor seeks offsets against the contract price promised to a subcontractor, the general contractor has the burden of proof." Breeze Const. Inc. v. CGU Ins. Co., No. CV-03-2452 (VVP), 2010 WL 475107, at *4 (E.D.N.Y. Feb. 5, 2010); see also Aristocrat Leisure Ltd. v. Deutsche Bank Tr. Co. Americas, 727 F. Supp. 2d 256, 289-90 (S.D.N.Y. 2010) ("New York state courts . . . consistently require the party that would benefit from the offset . . . to prove its entitlement to a reduction of damages."). As such, it was Pike's burden to demonstrate that the payments it made to American Iron and Local 417 were properly credited against the amount it would have otherwise owed UCP under the MSA. The Court finds no reason to disturb the jury's conclusion that Pike failed to satisfy that burden.
"Presumptions and other matters related to the burden of proof are considered matters of substantive law, governed by the law of the jurisdiction whose substantive law applies to the merits of the question in issue." United States v. McCombs, 30 F.3d 310, 323-24 (2d Cir. 1994).
Before considering the specifics of the claimed payments to American Iron and Local 417, the Court notes that the evidence at trial showed that Pike had a direct contractual relationship with American Iron, in addition to American Iron's sub-subcontract with UCP. (See Dkt. 177-51 at 4-5). The jury's assessment of Pike's claim that it was making payments to American Iron and Local 417 on behalf of UCP took place in the context of that background information. It is additionally important to understand that Pike presented to the jury a spreadsheet—trial exhibit 245 (Dkt. 177-50)—that Daniel DeCarlo, Pike's Project Manager, testified was an accurate reflection of payments credited against UCP's contract amount in connection with the Marist project. (See Dkt. 189 at 109-12).
Considering first the $349,668.00 payment, change order 3 states that its purpose is "to accomplish payment to Universal subcontractor American Iron for the months of June 2016 and July 2016." (Dkt. 177-11 at 2). It is undisputed that this change order was not signed. (Id.). As to evidence that the sum in question was actually paid to American Iron on UCP's behalf, Mr. DeCarlo testified that the $349,668.00 payment could be derived by performing certain mathematical equations on the numbers found on trial exhibit 245 and that "in total everything adds up to the bottom number of what [Pike] paid the subcontractors." (Dkt. 173 at 34-35). However, on cross-examination, Mr. DeCarlo acknowledged that his proffered calculation "could have been mistaken." (Id. at 41). It was accordingly a rational conclusion for the jury that the claimed $349,668.00 payment was not reflected on trial exhibit 245. And while Pike's counsel now argues that trial exhibit 245 was "not intended to capture all of Pike's payments to American Iron, such as those reflected in Change Orders 3 and 4" (Dkt. 184 at 8), Mr. DeCarlo testified at trial that if Pike had made the $349,668.00 payment, it would be reflected on trial exhibit 245 (see Dkt. 189 at 199 ("Q: My question is merely is the $349,000 amount which is in change order three reflected in this document Exhibit 245. I don't believe it is; do you? A: If we paid them, then yes, it is.")).
The jury was also not required to believe any particular portion of Mr. DeCarlo's testimony regarding payments made by Pike to American Iron, including his testimony that Pike made the payment allegedly reflected in unsigned change order 3. See In re Dana Corp., 574 F.3d 129, 152 (2d Cir. 2009) ("a jury is free to believe part and disbelieve part of any witness's testimony"); Dillon v. Morano, 497 F.3d 247, 253 (2d Cir. 2007) ("A jury is under no obligation to find [a witness] credible or find [his] explanation believable."). On this record, the Court cannot conclude that the jury was constrained to find that Pike was entitled to deduct from the amount due to UCP under the MSA the $349,668.00 payment allegedly made to American Iron. It was reasonable, and not against the weight of the evidence, for the jury to conclude that Pike had not met its burden of proof and resolve this factual dispute in UCP's favor.
Turning next to the $28,756.05 payment allegedly reflected by unsigned change order 4, Pike does not dispute that this claimed payment is also not documented in trial exhibit 245. For the same reasons discussed above, the jury was not required to find based solely on an unsigned change order and Mr. DeCarlo's testimony that Pike actually made this payment on UCP's behalf. The Court finds no basis to disturb the jury's finding on this point.
The Court considers next the claimed $115,551.23 retention payment. This payment was reflected in trial exhibit 245, but it was disputed at trial by UCP. In particular, UCP contested that this alleged payment was made in satisfaction of any obligation UCP owed to American Iron. The evidence cited by Pike as conclusively establishing that this payment was made on UCP's behalf consists of: trial exhibit 245; trial exhibit 740, which is a series of emails between Mr. DeCarlo and Michael Hoy, the president of American Iron, in May of 2017; Mr. DeCarlo's testimony that the payment was made; and the subcontract between UCP and American Iron, which requires payment of 10% retention. (See Dkt. 177-55 at 13-14).
While it is a closer call than the amounts reflected in unsigned change orders 3 and 4, the Court finds that it was not against the weight of the evidence for the jury to determine that Pike did not prove that it made the claimed $115,551.23 retention payment to American Iron to satisfy any obligation of UCP. As noted above, UCP disputed at trial that such payment had been made by Pike. The emails between Mr. DeCarlo and Mr. Hoy do not reflect that any such payment was made. Instead, on May 17, 2017, Mr. DeCarlo emailed Mr. Hoy and stated, among other things, "UCP contract retainage is at $115,551.22 as . . . confirmed in the November 2016 reconciliation." (Dkt. 177-51 at 6). Mr. Hoy replied on May 18, 2017, disputing Mr. DeCarlo's email. (Id. at 4). Mr. DeCarlo sent a response on May 25, 2017, in which he indicated that "[r]etainages release were discussed in our last call[.]" (Id. at 3). Mr. Hoy replied on May 31, 2017, stating that he "strongly disagree[d]" with Mr. DeCarlo. (Id. at 2). Finally, on June 1, 2017, Mr. DeCarlo sent an email to Mr. Hoy thanking him for a discussion "to settle American Iron open issues" and indicating that "[a] summary and COs will follow as discussed." (Id.). In other words, all this email exchange shows is that Pike took the position in May of 2017 that there had been $115,551.22 in retainage on the UCP contract. Nowhere in these emails is there confirmation that that amount was actually paid by Pike to American Iron as a retention payment, or that any such retention payment satisfied an obligation that UCP owed to American Iron.
Further, and as discussed above, the jury was free to disbelieve Mr. DeCarlo's testimony that Pike made the claimed retention payment. And while the subcontract between UCP and American Iron provides for payment of 10% retention, that is not proof that Pike actually paid $115,551.22 to American Iron in satisfaction of that obligation, which is what Pike was asking the jury to conclude. The Court is not persuaded that the jury's verdict was against the weight of the evidence on this point.
Finally, the Court considers the alleged $39,321.00 in payments to American Iron to settle AWOs. As an initial matter, the Court agrees with UCP that the jury could have appropriately concluded that payments by Pike to American Iron for additional work—that is, work not originally within the scope of the MSA—were not appropriately withheld from the contract price. UCP's counsel provided an apt analogy at oral argument, which the Court presents here with some slight modifications: Imagine that a homeowner engages a general contractor to build her a two-bedroom, one-bathroom house for $100,000. During the course of the project, the homeowner decides that she would like to add a second bathroom to the home. The cost to perform this additional work is $10,000, which the homeowner pays directly to the bathroom subcontractor. The homeowner is not then entitled to deduct that $10,000 from the original contract price of $100,000, because the work for which it was spent was not within the scope of the original contract.
Moreover, it was reasonable for the jury to conclude that the record did not show that Pike actually made the claimed payments to American Iron to settle the AWOs. In support of its claim that these payments were made, Pike cites to Mr. DeCarlo's testimony, the email exchange between Mr. DeCarlo and Mr. Hoy, and trial exhibit 194, which is a "Weekly Tracking Log" dated January 15, 2018, and produced by Pike. (Dkt. 177-49 at 2). Again, the jury was under no obligation to believe Mr. DeCarlo's testimony; it was free to conclude that he was not credible in whole or in part. As to the email exchange between Mr. DeCarlo and Mr. Hoy, on May 17, 2017, Mr. DeCarlo emailed Mr. Hoy that "[w]e sent you CO # 38 as agreed to in our last review to settle UCP outstanding WOs in amount of $23,770. These are all you have billed to UCP contract as reconciled in November 2016. That means they are the final owed COs under your UCP contract[.]" (Dkt. 177-51 at 5). Mr. Hoy responded that this was "Not Correct," and expressly disputed the amount stated by Mr. DeCarlo. (Id. at 4). These emails accordingly do not establish the payments claimed by Pike.
As for trial exhibit 194, it is a Pike-created internal document that the jury could have reasonably concluded was not a reliable record of whether and why particular payments were made. Moreover, Mr. DeCarlo testified that trial exhibit 194 was a "tracking of cost for costs incurred . . . by the Pike Company to make the schedule." (Dkt. 189 at 118 (emphasis added)). Without additional information regarding the specific AWOs submitted by American Iron (including whether they related to American Iron's contract with UCP or to its separate contract with Pike), the jury could have reasonably concluded that any payments reflected by this exhibit were incurred by Pike and not attributable to UCP. In other words, if American Iron performed additional work for Pike that was not related to the work that American Iron had sub-subcontracted with UCP to perform, the cost of such additional work would not appropriately be deducted from the amount due to UCP under the MSA.
The Court is further unpersuaded by Pike's argument that Donald Faust, UCP's president, "did not dispute that Pike directly paid American Iron and Local 417 for AWOs submitted to UCP, and expressly admitted that UCP did not pay America Iron for the AWOs." (Dkt. 177-55). Mr. Faust testified that he had no information to support Pike's assertion that it had settled the AWOs directly with American Iron. (Dkt. 190 at 130).
In sum, the Court rejects Pike's argument that the evidence at trial regarding these alleged payments to American Iron and Local 417 was such that the jury was constrained to find that Pike appropriately withheld or deducted those payments from the UCP contract price pursuant to the terms of the MSA. Accordingly, the Court will not grant Pike any of its requested relief on such basis.
2. Payments on Change Orders
The Court next considers Pike's argument that the jury erred in awarding UCP damages on the 29 change order requests. Pike argues that "the MSA establishes an orderly and absolutely necessary process concerning change orders" and that UCP indisputably did not follow that process, thus prohibiting it from recovering such damages. (Dkt. 177-55 at 17-18). In particular, Pike cites to §§ 1.6, 2.7, 2.8, 2.9, 3.4, 3.9, 5.2, 5.4, 5.6 and 5.8 of the MSA as appropriate bases for rejection of the 29 disputed change order requests. (Dkt. 177-55 at 24-25). Those contractual provisions are summarized as follows:
• § 1.6 of the MSA describes UCP's responsibilities under the MSA and, as relevant here, provides that UCP is responsible for taking field dimensions as required to meet the schedule of work.
• §§ 2.7, 2.8, and 2.9 of the MSA collectively afford Pike the right to make direct payments to UCP's subcontractors and/or vendors and to subsequently deduct or withhold those payments from the subcontract price.
• § 3.4 of the MSA provides that if UCP is delayed by an act or omission of Pike or another subcontractor, and not due to any act or omission on its part, then its time for completion of its work shall be extended, but that it shall not make any claim for damages for the delay.
• § 3.9 of the MSA provides that UCP is responsible for providing all hoisting to perform its subcontract work.(Dkt. 181-3 at 4-5, 8-9, 11, 14-15). Pike has provided a chart identifying which of these provisions it contends support the rejection of each of the disputed change order requests. (Dkt. 177-55 at 24-25).
• § 5.2 of the MSA provides that UCP must advise Pike within three business days of the impact to the subcontract price of any changes issued at the direction of Marist or its architect, or it will waive any claim for an adjustment to the subcontract price for such changes.
• § 5.4 of the MSA provides that UCP "shall not be entitled to receive extra compensation for extra work or materials or changes of any kind regardless of whether the same was ordered by the Contractor or any of its representatives unless a Change Order or Written Authorization to Proceed has been issued in writing by the Contractor."
• § 5.6 of the MSA provides that UCP waives any claims against Pike for delays caused by Pike, "it being understood and agreed that the Subcontractor's sole and exclusive remedy in such event shall be an extension of time[.]"
• § 5.8 of the MSA provides that if a claim for additional compensation by UCP is rejected by Marist or its architect as being within the scope of UCP's work, Pike will not be liable to UCP for additional compensation unless it agrees in writing to pay.
UCP argues in opposition that Pike is attempting to impermissibly "cherry-pick" provisions of the MSA to follow while rejecting others, and that it cannot lawfully do so. (Dkt. 181 at 18). UCP further contends that to the extent its change order requests were not submitted or processed in strict accordance with the provisions of the MSA, the jury permissibly concluded that its failure was excused. (Id. at 19-25).
Before turning to the individual disputed change order requests, the Court considers Pike's threshold argument that "UCP did not argue [a] waiver theory to the jury, and the Court did not provide the jury with instructions on the law regarding waiver" and that accordingly, "the jury could not have found that Pike waived any provisions of the MSA." (Dkt. 184 at 9). It is true that the Court's instructions to the jury did not cover the concept of waiver. However, UCP requested that the Court instruct the jury on substantial performance in support of UCP's theory that it substantially performed all its obligations under the contract, and the Court gave the jury that instruction. The concept of substantial performance (which New York courts also sometimes refer to as substantial compliance) is broad enough to encompass the facts of this case, separate from any finding of waiver.
As the New York Court of Appeals has explained, "[t]he flexible concept of substantial compliance stands in sharp contrast to the requirement of strict compliance that protects a party that has taken the precaution of making its duty expressly conditional." Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685, 692, 636 N.Y.S.2d 734, 660 N.E.2d 415 (1995). It is only where the parties "have made an event a condition of their agreement" that "[s]ubstantial performance . . . is not sufficient[.]" Id. (citation omitted); see also Schindler Elevator Corp. v. Tully Const. Co., 139 A.D.3d 930, 931, 30 N.Y.S.3d 707 (2d Dep't 2016) ("Where a construction contract contains a condition precedent-type notice provision setting forth the consequences of a failure to strictly comply, strict compliance will be required. Express conditions precedent must be literally performed; substantial performance will not suffice, and failure to strictly comply with such provisions generally constitutes a waiver of a claim." (quotations, citations, and alteration omitted)); Rifenburg Const., Inc. v. State, 90 A.D.3d 1498, 1499, 935 N.Y.S.2d 406 (4th Dep't 2011) (same).
By contrast, where a provision in a construction contract "is not a condition-precedent type . . . provision setting forth the consequences of a failure to strictly comply," then "substantial compliance with the . . . provision will suffice." Peter Scalamandre & Sons, Inc. v. FC 80 Dekalb Assocs., LLC, 129 A.D.3d 807, 809, 12 N.Y.S.3d 133 (2d Dep't 2015) (quotation and alteration omitted); see also Edgewater Const. Co. v. 81 & 3 of Watertown, Inc., 252 A.D.2d 951, 952, 675 N.Y.S.2d 722 (4th Dep't 1998) (because provisions of construction contract were not conditions precedent, they were "subject to the precept that substantial compliance is sufficient" (citation omitted)). Here, the Court determined in a written decision issued during trial that Pike could not rely on the failure to comply with any condition-precedent provisions in the MSA to argue that UCP was not entitled to recovery, due to its failure to plead the same. (See Dkt. 168). Accordingly, Pike relies on non-condition-precedent contract provisions in the MSA in support of its argument that UCP did not establish its entitlement to damages on the 29 change order requests. To the extent the jury reasonably concluded that UCP substantially complied with the provisions of the MSA on which Pike relies, the Court will not disturb its conclusions.
The Court turns now to the specifics of the disputed change order requests. Pike contends that change order requests 1 and 3-11 were rejected by Marist and its architect as within the scope of UCP's design coordination, that UCP did not receive a written change order before commencing the work set forth therein, and that change order requests 1, 3, 10, and 11 were untimely because they "were modifications by [Marist's architect] and UCP failed to submit the change order request within three days." (Dkt. 177-55 at 22 (citing §§ 5.2, 5.4, and 5.8 of the MSA)).
As to the contention that change order requests 1 and 3-11 were rejected by Marist's architect, the evidence relied upon by Pike is trial exhibit 137, a spreadsheet created by Mr. DeCarlo and supposedly tracking the outcome of each change order request submitted by UCP. (Dkt. 181-8; see also Dkt. 189 at 83-34). Trial exhibit 137 indicates that change order requests 1 and 3-11 were "Rejected by Owner's Architect. Design Coordination." (Dkt. 181-8). However, Pike cites to no evidence corroborating this spreadsheet, and UCP presented evidence at trial calling into question its reliability. In particular, during his testimony, Mr. DeCarlo indicated that change order request eight was marked by Pike as having been rejected. (Dkt. 189 at 191-92). However, Mr. DeCarlo then acknowledged that Gloria Ciminelli, Pike's project manager for the Marist project, sent an email in which she stated that UCP should proceed with the change reflected in change order request 8. (Id.). The same was true of change order request 9. (Id. at 193-94). UCP's former vice president and general manager, Marc Davis, also confirmed that Ms. Ciminelli had approved change order requests 8 and 9 via email. (Dkt. 190 at 24-25). Additionally, Mr. Faust testified that no one from Pike, Marist, or Marist's architect ever told UCP that those change order requests had been rejected by the architect. (Id. at 153). On this record, it was reasonable and not against the weight of the evidence for the jury to discredit Pike's contention that these change orders had been appropriately rejected in connection with § 5.8 of the MSA.
As to §§ 5.2 and 5.4 of the MSA, requiring written authorization and notice within three business days, "[s]ubstantial compliance will be found where there is sufficient correspondence between the parties to give the owner actual notice[.]" Peter Scalamandre & Sons, 129 A.D.3d at 810, 12 N.Y.S.3d 133. Here, Mr. Davis expressly testified that change order requests 1 and 3-9 were timely and appropriately presented to Pike upon UCP learning of the need for additional work. (Dkt. 190 at 21-27). Additionally, as noted above, Ms. Ciminelli explicitly approved change order requests 8 and 9 via email. Mr. Faust further testified that all of the work reflected in these change orders was related to issues that were known to and discussed with Pike. (Dkt. 191 at 144-152). In other words, the jury could have rationally concluded that Pike knew of and approved this work ahead of time, and that this constituted substantial compliance by UCP with the terms of the MSA.
Pike next argues that UCP waived any claim for addition compensation related to change order requests 13, 14, and 15, because it did not receive prior written authorization, because the work reflected by these change order requests was within the scope of UCP's design coordination, and because "to the extent this allegedly additional work was caused by Pike, UCP's sole remedy was an extension of time to complete its work." (Dkt. 177-55 at 22 (citing §§ 3.4, 5.4, and 5.6 of the MSA)). These arguments are unpersuasive.
First, as to Pike's contention that these change order requests were within the scope of UCP's design coordination, Pike's own documents demonstrate that Pike did not reject them on that basis. To the contrary, the spreadsheet created by Mr. DeCarlo indicates that: change order request 13 was rejected because "Work not performed by UCP. Foundation modified/corrected by Concrete contractor."; change order request 14 was rejected because "UCP did not perform work"; and change order request 15 was rejected because "Work not performed by UCP. Foundation modified/corrected by Concrete contractor." (Dkt. 181-8 at 2-3). Pike's belated attempt to argue that these change order requests were within the scope of the work contemplated by the MSA is unsupported by the evidence of record and not a basis to disturb the jury's findings.
Second, Pike has not supported its contention that these change orders related to additional work allegedly required by delays caused by Pike or other subcontractors. To the contrary, Gary Reed, a project manager for UCP, testified that change order request 13 was related to panel modifications that were necessary due to a misfitting foundation in the field. (Dkt. 192 at 6-7). Mr. Reed further testified that change order request 14 was similarly related to panel modifications required by field conditions related to the foundation. (Id. at 5). Mr. Faust testified that change order request 15 related to work to modify the panels because the foundation had been poured out of tolerance. (Dkt. 190 at 126). Mr. Faust also expressly testified that the change orders did not relate to any delay, but to work needed to fix the condition. (Id. at 159). The jury was well within its discretion to credit this testimony. Pike's vague assertion that these change orders are barred by the MSA "to the extent this allegedly additional work was caused by Pike" is insufficient to satisfy its burden on the instant post-verdict motions.
Third, it was again reasonable and not against the weight of the evidence for the jury to conclude that UCP had substantially complied with the written authorization requirement. Mr. Reed testified that Mr. DeCarlo approved change order request 14 via email. (Dkt. 192 at 5-6). Emails between Mr. DeCarlo and Mr. Reed confirmed that Mr. Reed advised Mr. DeCarlo that UCP would not proceed with the work contemplated by charge order request 14 without "an approved change order," and that Mr. DeCarlo replied that he was directing UCP to proceed with the work. (Dkt. 181-13 at 3-4). As to change order request 15, Mr. Reed testified that Pike and UCP collectively determined in the field that the panel modifications were necessary, and that Pike directed him to make them. (Dkt. 192 at 7). Mr. Reed also testified that no one from Pike ever told him that the change order requests were not properly submitted, and that he actively worked with Pike to adjust the change order requests to ensure that they were acceptable to Pike and consistent with Pike's interpretation of the MSA. (Dkt. 181-25 at 4-7, 10-11). Moreover, on June 1, 2016, William J. Ketchen, executive vice president of Pike, sent UCP a letter in which it authorized UCP to immediately begin erecting wall panels and indicated that Pike would correct any substrate issues and would "pay for lost time that was a direct result of substrate problems." (Dkt. 181-4). This evidence collectively forms an adequate basis for the jury's findings as to these change order requests.
As to change order requests 16 through 27, Pike cites §§ 2.7, 2.8, and 2.9 of the MSA, and contends that these change order requests were appropriately rejected because they concern AWOs from American Iron, and Pike paid American Iron directly to settle those AWOs. (Dkt. 177-55 at 22). The Court has already concluded, for reasons set forth in detail above, that it was reasonable and not against the weight of the evidence for the jury to determine that Pike had not established its entitlement to an offset from the contract balance for these alleged payments. The Court further finds that, even with UCP bearing the burden of proof on its claim for moneys due pursuant to the change orders, the evidence regarding Pike's alleged payment of the AWOs directly to American Iron was sufficiently equivocal that the jury could have reasonably resolved the issue in UCP's favor.
In particular, and as noted above, Mr. Faust testified that he was not aware of any information supporting Pike's claim that it had "paid those charges, settled them with American Iron directly and funded them." (Dkt. 190 at 130). Mr. Faust further disputed Pike's assertion that these change order requests exclusively reflected work performed by American Iron, pointing to specific engineering work described therein that was performed by UCP. (Id. at 129). This testimony was consistent with Mr. Reed's testimony, wherein he explained that while Pike had sometimes paid American Iron directly "under the steel guy," that was not the case for change order requests that he completed. (Dkt. 192 at 13). As he explained it, "whenever I had to pay the bill, I had to write a change order." (Id.) Mr. Reed wrote change order requests 16 through 27 (see Dkt. 177-33; Dkt. 177-34; Dkt. 177-35; Dkt. 177-36; Dkt. 177-37; Dkt. 177-38; Dkt. 177-39; Dkt. 177-40; Dkt. 177-41; Dkt. 177-42; Dkt. 177-43; Dkt. 177-44). In sum, Pike's claim that it had settled the AWOs directly with American Iron was a disputed issue of fact that the jury reasonably resolved in UCP's favor, and accordingly is not a basis for the Court to disturb the jury's verdict.
The Court does note that Mr. Faust testified that these change order requests reflected both costs by UCP and by American Iron, and that UCP did not pay to American Iron the portion of the change order requests reflecting American Iron's expenses. (Dkt. 190 at 127-134). However, the question before the jury was not whether UCP had fulfilled its obligations to its subcontractors; it was whether the contract price due to UCP had been increased by the amount of the change order requests. Mr. Faust explained to the jury that the full amount of the change order requests represented additional work done either by UCP or on UCP's behalf (id. at 132) and the jury was free to credit that testimony.
Pike has offered no other reason why change order requests 16-27 were "appropriately rejected" in accordance with the MSA. (Dkt. 177-55 at 22). As noted above, these change order requests were all submitted by Mr. Reed, and Mr. Reed testified that it was his practice to transmit change order requests to Pike via email, that no one at Pike ever told him that his change order requests had not been properly submitted, and that he worked with Pike to make adjustments to his change order requests to "make them acceptable." (Dkt. 192 at 42, 46). Under these circumstances, the jury could have reasonably found that UCP substantially complied with the MSA as to change order requests 16 through 27, and the Court does not find that Pike is entitled to remittitur thereon.
Turning to change order requests 28 through 30, Pike argues that UCP did not receive a written change order before commencing the work, that the work described in these change order requests was within the scope of UCP's design coordination because UCP was required to perform a site survey, that change order request 30 was rejected by Marist and its architect as within the scope of UCP's design coordination, and that "to the extent this allegedly additional work was caused by Pike, UCP's sole remedy was an extension of time." (Dkt. 177-55 at 23 (citing §§ 1.6, 3.4, 5.4, 5.6, and 5.8 of the MSA)). These arguments are unpersuasive, for reasons already discussed by the Court. First, while Pike asserts that the work described in these change orders "involved the modification of panels to fit the structure of the building" (id. at 23), that is not how Mr. Faust described them (Dkt. 191 at 165-66), and the jury was free to credit Mr. Faust. Pike has further provided nothing beyond its own assertion that these work orders somehow could have been avoided had UCP performed a site survey to support the conclusion that § 1.6 of the MSA bars these damages. This is insufficient to meet Pike's burden on the instant motion.
Second, the Court has already explained that it was reasonable for the jury not to credit Pike's claim that particular change order requests were rejected by Marist's architect based solely on the spreadsheet created by Mr. DeCarlo, particularly given Mr. Faust's testimony that no such rejection was ever communicated to UCP.
Third, and again as the Court has already explained, a vague argument referencing "to the extent" the additional work was related to Pike-caused delays, does not warrant any of the relief Pike seeks. Mr. Faust's description of the work set forth in change order requests 28 through 30 had nothing to do with any delay, but was expressly attributed by him to "roof dimension changes and subsequent confusion and lack of coordination[.]" (Dkt. 191 at 165-66). The jury was entitled to credit this testimony and it was not against the weight of the evidence for it to do so.
Finally, as to the written authorization requirement, Mr. Reed explained that Pike had changed the roofline and that Pike then directed UCP to make the associated changes. (Dkt. 192 at 8-9). Again, the jury could have concluded based on this evidence that Pike had actual advanced notice that the work was being done and had approved thereof, and that UCP had thus substantially complied with the provisions of the MSA with respect to change order requests 28 through 30.
The Court turns finally to change order request 31. Pike cites §§ 3.4, 3.9, 5.4, and 5.6 of the MSA in challenging this change order request. (Dkt. 177-55 at 23). The Court again finds these arguments unpersuasive. As to § 3.9, Pike contends that change order request 31 seeks "the alleged price difference between erectors Maccabee . . . and American Iron," and argues that because "[t]he MSA provides that UCP shall be responsible for erection of panels," Pike cannot be held liable for such costs. (Id.). However, Mr. Faust testified that UCP was forced to switch from Maccabee to American Iron because Pike "told [UCP] they were going to erect the building themselves," and that the reason American Iron's price was higher than Maccabee's was to compensate for missing connections and foundation problems caused by Pike. (Dkt. 191 at 167-168). In other words, the jury could have reasonably concluded that this change order request—which was dated July 12, 2016 (see Dkt. 177-48)—was within the scope of Pike's June 1, 2016 letter instructing UCP to proceed with erection and agreeing to pay for additional costs occasioned by substrate problems. For those same reasons, it was within the jury's discretion to determine that UCP had substantially complied with the MSA as to this particular change order.
In sum, the Court does not find that the jury "irrationally ignored the express terms of the MSA" as argued by Pike. (Dkt. 177-55 at 17). Instead, for the reasons detailed above, the jury reasonably concluded that UCP had substantially complied with the MSA's requirements for seeking additional compensation for additional work. The Court does not find such conclusion to be against the weight of the evidence, not does the Court find that remittitur is warranted on the record before it. As such, the Court denies Pike's post-verdict motions in their entirety as they relate to UCP's claim for breach of contract by Pike.
C. Pike's Unjust Enrichment Claim
Pike next argues that the Court should grant judgment in its favor on its fourth cause of action for unjust enrichment. Pike cites specifically to the following amounts it contends it is due on its unjust enrichment claim: (1) the $535,815.00 that Pike claims to have paid to American Iron and Local 417 on UCP's behalf in connection with work performed pursuant to the MSA, and (2) the $22,710.94 awarded in damages to UCP for change order requests 16-27. (See Dkt. 177-55 at 25-26). In response, UCP contends that because Pike willingly submitted its breach of contract claims to the jury, any unjust enrichment claim inconsistent with the verdict must be rejected. (Dkt. 181 at 25).
"The basic elements of an unjust enrichment claim in New York require proof that (1) defendant was enriched, (2) at plaintiff's expense, and (3) equity and good conscience militate against permitting defendant to retain what plaintiff is seeking to recover." Briarpatch Ltd., L.P v. Phoenix Pictures, Inc., 373 F.3d 296, 306 (2d Cir. 2004). "The existence of a valid and enforceable written contract precludes a quantum meruit claim." Aviv Constr., Inc. v. Antiquarium, Ltd., 259 A.D.2d 445, 446, 687 N.Y.S.2d 344 (1st Dep't 1999) (citing Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388, 521 N.Y.S.2d 653, 516 N.E.2d 190 (1987)).
Pike seeks, in essence, to use its unjust enrichment claim as a means to reduce the amount owed to UCP under the MSA. The Court agrees with UCP that such a result would be inconsistent with New York law. As one New York appellate court recently explained, "[t]he theory of unjust enrichment lies as a quasi-contract claim and contemplates an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties," and "[a]ccordingly, no such claim lies where the parties have entered into a contract that governs the subject matter in dispute." Colgate Inn, LLC v. Eberhardt, LLC, 206 A.D.3d 1197, 1200, 171 N.Y.S.3d 183 (4th Dep't 2022) (emphasis added and quotations and citations omitted); see also Clark-Fitzpatrick, 70 N.Y.2d at 388, 521 N.Y.S.2d 653, 516 N.E.2d 190 ("The existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter."). Here, there can be no question that the subject matter in dispute (that is, the amount owed to UCP by Pike for work performed on the Marist project) is governed by a valid and enforceable contract. The Court therefore denies Pike's request for judgment on its unjust enrichment claim, and instead concludes that such claim fails as a matter of law.
II. UCP's Motion for Pre- and Post-Judgment Interest Pursuant to Rule 59(e)
The Court turns next to UCP's motion for pre- and post-judgment interest pursuant to Rule 59(e). Rule 59(e) allows a litigant to file a "motion to alter or amend a judgment." See Fed. R. Civ. P. 59(e). As recently explained by the Supreme Court:
The Rule gives a district court the chance "to rectify its own mistakes in the period immediately following" its decision. White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 450, 102 S. Ct. 1162, 71 L.Ed.2d 325 (1982). In keeping with that corrective function, "federal courts generally have [used] Rule 59(e) only" to "reconsider[ ] matters properly encompassed in a decision on the merits." Id., at 451, 102 S. Ct. 1162. In particular, courts will not address new arguments or evidence that the moving party could have raised before the decision issued. See 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2810.1, pp. 163-164 (3d ed. 2012) (Wright & Miller); accord, Exxon Shipping Co. v. Baker, 554 U.S. 471, 485-486, n. 5, 128 S. Ct. 2605, 171 L.Ed.2d 570 (2008) (quoting prior edition). The motion is therefore tightly tied to the underlying judgment.Banister v. Davis, — U.S. —, 140 S. Ct. 1698, 1703, 207 L.Ed.2d 58 (2020).
In its moving papers, UCP contends that it is entitled to pre- and post-judgment interest in the amount of 12 percent pursuant to the New York General Business Law ("GBA") and Prompt Payment Act ("PPA"), running from the three separate dates of June 30, 2016, July 31, 2016, and September 30, 2016, to the present. (See Dkt. 175-9 at 11-13). In its response papers, Pike does not dispute that UCP is entitled to prejudgment interest. (See Dkt. 182 at 4) ("Pike does not contest that UCP is entitled to prejudgment interest on any damages awarded by the jury that survive Pike's post-trial motion"). However, Pike contends that the Court should apply the New York statutory prejudgment interest rate of nine percent per annum from January 1, 2017, a date which aligns with the substantial completion of the project at Marist College, up until entry of the judgment, and thereafter should apply the federal post-judgment interest rate, pursuant to 28 U.S.C. § 1961. (Id.). In its reply papers, UCP concedes that the federal interest rate applies for its claim for post-judgment interest (see Dkt. 183 at 5), but it maintains that the 12 percent rate applies up until the date of the judgment, and that the interest accrued earlier than January 1, 2017 (id.). Accordingly, the Court turns to considering the applicable rate and date for calculating prejudgment interest on the damages award.
A. Applicable Interest Rate
The purpose of the PPA is "to expedite payment of all monies owed to those who perform contracting services pursuant to construction contracts." N.Y. Gen. Bus. Law § 756-a; see also Layout, Inc. v. Heavy Metal Corp., No. 16-CV-2531, 2018 WL 2244684, *2 (E.D.N.Y. Apr. 17, 2018) (the PPA is "designed to provide for the prompt payment of employees and contractors engaged in private construction projects" (quotation and citation omitted)). Under the PPA, "[w]hen a subcontractor has performed in accordance with the provisions of its construction contract, the contractor shall pay to the subcontractor, . . . the full or proportionate amount of funds received from the owner for each subcontractor's work and materials based on work or services provided under the construction contract, seven days after receipt of good funds for each interim or final payment[.]" Id. § 756-a(3)(b)(ii).
If the contractor fails to pay its subcontractor within this time frame, "the contractor . . . shall pay its subcontractor interest, beginning on the next day, at the rate of one percent a month or fraction of a month on the unpaid balance." N.Y. Gen. Bus. Law § 756-b(1)(b).Mid Atl. Framing, LLC v. AVA Realty Ithaca, LLC, No. 3:13-CV-01376 (MAD/DEP), 2019 WL 2603615, at *3 (N.D.N.Y. June 25, 2019); see also Innovative Design & Bldg. Servs., LLC v. Arch Ins. Co., No. 12-CV-5474, 2014 WL 4770098, *19 (S.D.N.Y. Sept. 23, 2014) ("For construction contracts, the New York state legislature has determined that the amount of prejudgment interest to be applied is 'one percent a month' " (quoting N.Y. Gen. Bus. Law § 756-b(l)(b))). "The contractor or subcontractor's payment of [a]subcontractor or material supplier's interim or final invoice shall be made on the basis of a duly approved invoice of the work performed and materials supplied during the billing cycle." N.Y. Gen. Bus. Law § 756-a(3)(b). The PPA applies to all non-public construction improvements with a value exceeding $150,000. See N.Y. Gen. Bus. Law § 756(1).
In support of its argument that the 12 percent interest rate under the PPA should apply here, UCP contends that the project at Marist was a private construction project, and the Court previously "determined that the PPA applied to the Phase 2 project, which is not materially different than the Phase 1 project for purposes of applicability of the PPA." (Dkt. 175-9 at 11 n.1) (citing Pike Co. v. Tri-Krete Ltd., 349 F. Supp. 3d 265, 273 (W.D.N.Y. 2018)). In response, Pike contends that the PPA does not apply because Pike did not violate the statute, and also because UCP cannot use a Rule 59 motion to seek relief that was not alleged in its pleading. (See Dkt. 182 at 4).
With respect to its argument that it did not violate the statute, Pike argues a contractor's payment obligations to a subcontractor under the PPA are triggered by the submission of an invoice, and UCP did not present evidence at trial of invoices for the amounts it claimed were due under the contract. (Id. at 9). Further, Pike maintains that it withheld payment due to unsatisfactory job progress, because UCP failed to comply with the material provisions of the MSA, and because UCP failed to make timely payments for labor. (Id. at 10-12). It cites to certain provisions of the MSA as well as testimony and exhibits from the trial, contending that it withheld amounts under the contract in good faith and pursuant to its rights under the MSA. (See id.).
The Court agrees with Pike that UCP has not established its entitlement to the 12 percent interest rate under the PPA. UCP does not dispute that the PPA requires submission of an invoice in order to trigger a contractor's obligations thereunder. (See Dkt. 183 at 13); see also Acranom Masonry, Inc. v. Wenger Constr. Co., No. 14-CV-1839 PKC RML, 2019 WL 3798047, at *15 (E.D.N.Y. Aug. 13, 2019) ("New York's Prompt Payment Act mandates particular procedures for the submission and payment of construction contractor invoices."). Instead, UCP argues that: (1) trial exhibit 245 demonstrates its submission of invoices for the unpaid subcontract balance; and (2) it is excused from having submitted invoices related to the change order requests because Pike's own conduct prohibited UCP from doing so. (Dkt. 175-9 at 12; Dkt. 183 at 9-11, 13). The Court is unpersuaded by these arguments.
With respect to the unpaid subcontract balance, trial exhibit 245 (which UCP challenged the accuracy of, at least in part, at trial) records the "draw periods" under the MSA and associated billings by UCP within those draw periods. (Dkt. 177-50). However, it does not record that any actual invoices were submitted by UCP, nor has UCP cited to any such invoice in the record. Further, UCP's argument that Pike somehow prevented it from submitting invoices related to the change order requests is wholly without support in the record. As discussed at length above, UCP presented evidence at trial that Pike approved, either in writing or implicitly, the work associated with the change order requests. UCP also presented evidence, and the jury found, that the work was actually performed. UCP has offered no explanation for how Pike nevertheless prevented it from submitting invoices upon the completion of said work and nothing in the record before the Court supports such a finding.
Because UCP cannot demonstrate that it submitted invoices to Pike reflecting the amounts that it contends Pike failed to pay, UCP has not established that the PPA's timing requirements were violated. Under these circumstances, the Court will not apply the 12 percent interest rate.
UCP argues in the alternative that it is entitled to nine percent interest on the judgment. (See Dkt. 175-9 at 14). Pike concedes that "the Court should apply the New York statutory prejudgment interest rate of nine percent (9%) per annum to damages, if any, awarded to UCP upon the resolution of Pike's post-trial motion." (Dkt. 182 at 5). Accordingly, UCP will be awarded prejudgment interest at this rate.
B. Applicable Date
New York law gives this Court "wide discretion in determining a reasonable date from which to award pre-judgment interest." Conway v. Icahn & Co., 16 F.3d 504, 512 (2d Cir. 1994). The New York Civil Practice Law and Rules ("CPLR") provides that prejudgment interest shall be computed "from the earliest ascertainable date the cause of action existed, except that interest upon damages incurred thereafter shall be computed from the date incurred." N.Y. CPLR 5001(b). Where "damages were incurred at various times," the Court has discretion to compute interest from a "single reasonable intermediate date." Id.
Here, there can be no question that the damages were incurred at various times. Indeed, UCP's own papers identify three different proposed accrual dates for various portions of the damages award. (See Dkt. 183 at 14). The Court thus finds it appropriate to use a single reasonable intermediate date as the starting point for the computation. However, the Court does not agree with Pike that January 1, 2017, is the appropriate reasonable intermediate date. Instead, the Court will begin the computation on September 30, 2016. This is one of the alternative proposals made by UCP (see Dkt. 183 at 14 (requesting in the alternative that the Court award interest "[p]ursuant to N.Y. CPLR § 5001(c), at rate of 9% upon the entire judgment amount of $1,886,585.63 beginning on September 30, 2016")), and it is supported by Mr. Faust's trial testimony that UCP had completed its work under the MSA in August of 2016 and had sought to recover the unpaid amounts thereunder since September of 2016. (See Dkt. 175-9 at 12-13).
While Pike argues that UCP's claims cannot have fully accrued by September of 2016, because "more than a third of UCP's change order requests at issue (10 of 29) were not even submitted from UCP to Pike until September 2016, and therefore could not have been rejected by Pike by August 31, 2016" (Dkt. 182 at 6), an intermediate date by definition falls between the earliest accruing damages and the latest accruing damages. See, e.g., Conceria Vignola SRL v. AXA Holdings, LLC, No. 09 CIV. 6684 GBD DF, 2010 WL 3377476, at *4 (S.D.N.Y. Aug. 3, 2010) ("Plaintiff's proposed intermediate date of February 28, 2007 falls approximately halfway between the dates upon which the first and last invoices became due and, as such, represents a reasonable intermediate date from which interest may be computed."). Here, September 30, 2016, also falls roughly halfway between June 30, 2016, when UCP contends the first unpaid amounts became due, and January 1, 2017, when Pike concedes that the relevant work was substantially completed. (See Dkt. 182 at 6).
In sum, the Court grants UCP's motion to the extent that it awards: (1) prejudgment interest at the rate of nine percent per annum from September 30, 2016, through entry of judgment on July 27, 2022; and (2) post-judgment interest thereafter at the federal rate pursuant to 29 U.S.C. § 1961.
CONCLUSION
For the foregoing reasons, the Court grants UCP's motion to alter the judgment (Dkt. 175) to the extent that it awards UCP: (1) prejudgment interest at the rate of nine percent per annum from September 30, 2016, through entry of judgment on July 27, 2022; and (2) post-judgment interest thereafter at the federal rate pursuant to 29 U.S.C. § 1961.
The Court denies Pike's post-verdict motion (Dkt. 177) in its entirety.
SO ORDERED.