Azzco International Hellas v. New Haven, No. 32 52 71 (Dec. 23, 1993)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION The plaintiff was a subcontractor for the construction of the Connecticut Financial Center Office Tower in downtown New Haven. He supplied, delivered and installed the marble and stone to create the interior lobby.

The defendant Enterprise Construction Company, an affiliate of the Chase organization, was the contractor for the project.

Prior to trial the plaintiff withdrew the case as to the defendant City of New Haven. The city had been joined because of its ownership of the land on which the building stands.

The parties were unable to agree on the balance due to the plaintiff and the court heard testimony from an accountant employed by the defendant who demonstrated when and how certain payments had been made to the plaintiff.

On the strength of that testimony, the court finds that the plaintiff's claim of $77,268.18 should be reduced by the sum of $31,500 for a payment made on a lien waiver transaction and for which the plaintiff had no record. The defendant is also entitled to a credit of $1200 for a separate payment made on a field purchase order.

The court finds there is still due and outstanding a balance CT Page 11214 owed to the plaintiff by the defendant in the amount of $44,568.18.

The defendant also claimed an additional credit of $17,000, based on the argument that the original project contract between the parties was $643,000 and not $660,000 as maintained by the plaintiff.

The plaintiff offered a plausible explanation for this discrepancy and it is the conclusion of the court that the contract price was as the plaintiff claimed, $660,000. The court finds it significant that in numerous documents prepared by the defendant at its office the $660,000 figure is stated as the contract price. It appears obvious that the $643,000 figure was a figure arrived at as a compromise when the balance due was net paid. The defendant then failed to pay in accordance with the compromise and the plaintiff under its terms reasserted his original claim.

Judgment may enter for the plaintiff to recover of the defendant the principal sum of $44,568.18 plus interest for the three year period from November 1, 1990 to December 1, 1993 in the amount of $13,370.45. The plaintiff is also entitled to taxable costs.

This judgment is entered on the second count, and the third count against the City of New Haven has been withdrawn. This leaves the foreclosure count, set forth in the first count. Action on that count was deferred at trial because of the court's order bifurcating the proceedings. Upon receipt of a request from the plaintiff indicating that count must proceed, the court will assign the matter for hearing.

Anthony V. DeMayo, Judge CT Page 11215