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Konover Construction Corp. v. East Coast Construction Services Corp.

March 20, 2006

KONOVER CONSTRUCTION CORPORATION, PLAINTIFF,
v.
EAST COAST CONSTRUCTION SERVICES CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Irenas, Senior District Judge

OPINION

This lawsuit arises from disputes related to a construction subcontract between Plaintiff Konover Construction Corporation ("Konover") and Defendant East Coast Construction Services Corporation ("ECC"). Presently before the Court is the Motion for Partial Summary Judgment of Konover.

I.

Konover, a general contractor, was awarded a contract for the construction of the Sierra Suites Hotel ("the Project") in Parsippany, New Jersey, by Parsippany Lodging Associates, LP. On or about March 11, 2003, Konover entered into a subcontract ("the Subcontract") with ECC, in which ECC was to provide all wood frame and rough carpentry for the Project.

ECC began work under the Subcontract in May, 2003. Problems quickly developed, although the parties dispute who was at fault. Konover maintains that ECC failed to provide adequate manpower for the Project, perform its work in a timely and proficient manner, and pay ECC's subcontractors for supplies and work performed. Konover also contends that ECC misrepresented to Konover that it had paid subcontractors F.M. Ituana and DiNaso & Sons Building Supply when ECC had not done so, including submitting a document with a forged signature from the sales manager of DiNaso & Sons and incorrectly representing that F.M. Ituana was a subsidiary of ECC. ECC maintains that the problems were due to Konover's failure to pay ECC for the work performed and materials supplied.

ECC either withdrew from or abandoned the Project on February 7, 2004. Konover sent ECC a final notice of default termination on February 10, 2004.

Konover filed the instant Complaint against ECC, ECC President and owner Robert E. Fair ("Fair") and Carletta A. Smith ("Smith") (collectively "Defendants"), the notary public who notarized the allegedly forged document, on December 13, 2004.*fn1

In Count I of the Complaint, Konover alleges breach of the Subcontract by ECC. Counts II and III allege fraudulent and negligent misrepresentation by ECC, Fair and Smith ("the misrepresentation claims").

ECC filed a Counterclaim against Konover on March 2, 2005, alleging that Konover breached the Subcontract (Count I) and seeking indemnification from Konover for claims brought against ECC by ECC's subcontractors on the Project (Count II).

II.

Under Fed. R. Civ. P. 56(c), a court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In deciding a motion for summary judgment, the court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).

The role of the court is not to "weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The non-moving party may not rest on its pleadings to oppose a summary judgment motion but must affirmatively come forward with admissible evidence establishing a genuine issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

III.

Konover seeks summary judgment granting its prayer for relief on the misrepresentation claims found Counts II and III of the Complaint as they pertain to ECC's alleged misrepresentation that F.M. Ituana was a subsidiary of ECC.*fn2 Konover also seeks summary judgment dismissing Count II of the Counterclaim, in which ECC seeks indemnification from Konover for any liability incurred on claims against ECC by its sub-subcontractors, and attorney's fees incurred by it in this case. ECC has not opposed Konover's request for summary judgment on ...


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