The following e-filed documents, listed by NYSCEF document number (Motion 005) 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER. DECISION + ORDER ON MOTION Defendant Hudson Meridian Construction Group, LLC (“Hudson Meridian”) brings this motion for summary judgment against plaintiff AMG Solutions LLC (“AMG”) seeking dismissal of AMG’s breach of contract claim, Lien Law claims, and trust fund diversion claim, and seeking summary judgment against AMG on Hudson Meridian’s counterclaim for costs. FACTS 1. The Contract Defendant Hudson Meridian is a construction management firm that was retained by CREF 546 West 44th Street, LLC (“the Owner”) to build a luxury apartment building at that location. (Cote Feb. 28, 2022 Aff. [NYSCEF Doc. No. 119], 2). On June 26, 2014, a contract between Hudson Meridian and plaintiff AMG (“the contract”) was executed, providing that AMG would render subcontractor services to Hudson Meridian and perform work involving glass, metal, and woodwork. (Contract, Exhibit B to Cote Aff. [NYSCEF Doc. No. 124]). The contract was signed by Robert Schwartz, the Vice President of Hudson Meridian, acting as the agent of the Owner, and by Jesse Hammerman, AMG’s Chief Financial Officer, on June 27, 2014. (Id.). The contract provided that in exchange for the work done, AMG would receive $2,450,000. (Id.). In addition, upon agreement of the parties, the contract price and scope of work could be adjusted. (Id.). Certain approved changes throughout AMG’s work on the project increased the contract price by $34,000 for a new total of $2,484,000. (Cote Feb. 28, 2022 Aff.
14-15; Hammerman Dep. [NYSCEF Doc. No. 177] 145:23-146:11). The contract required AMG to submit to Hudson Meridian “an itemized application for payment operations” at least 10 days before the due date of each agreed-upon progress payment. (Contract, §7.3). The contract also permitted Hudson Meridian to “withhold payment of an application for payment in whole or in part” for one or more specified reasons. (Id. §7.7). While all interim requests or “requisitions” for payment were governed by Section 7.3 of the contract, the final payment (also referred to by the parties as “Requisition 21″) was specifically governed by Section 7.11. (Id. §§7.3, 7.11). 2. AMG’s Right to Final Payment William Cote is the President of Hudson Meridian. (Cote Feb, 28, 2022 Aff. [NYSCEF Doc. No. 119], 1). Mr. Cote averred in a November 2017 affidavit that “[d]uring the course of the Project, AMG consistently and repeatedly failed to perform the work under the Subcontract in a timely manner, and failed to provide proper and/or complete materials for the Project” which “delayed the Project and imposed significant completion and remediation costs on Hudson Meridian.” (Cote Nov. 30, 2017 Aff. [NYSCEF Doc. No. 181]
