By: WBG, LLP Published: January 2011

Subcontractor Allowed Recovery For Work Performed

Disputes between contractors and subcontractors may ultimately require recourse to the courts.  A trial judge will allow both sides to present witnesses and produce documents as to the issues in dispute.  The judge will then make credibility determinations, resolve factual disputes and grant judgment upon application of the appropriate legal standard.

At times, however, a judge may grant summary judgment without a trial where the affidavits and supporting documents demonstrate the absence of factual disputes.  In the recent case of Durao Concrete, Inc. v. RJD Construction, Inc., a subcontractor was able to convince the court that it should enter summary judgment in its favor.


RJD Construction, Inc. was hired as a general contractor in connection with a construction project located in Yaphank, New York.  Under its agreement with the owner, RJD was to be paid $591,375.  RJD subcontracted the installation of a concrete foundation, footings, walls and slabs to Durao Concrete, Inc. for the agreed price of $40,000.  The subcontractor completed its work in August 2007 and submitted invoices to the general contractor totaling $41,800.  The additional $1,800 was for the use of a pump truck to pump the cement to the job.  After the general contractor failed to pay the subcontractor’s invoices, the subcontractor filed a mechanic’s lien, sued the general contractor, and moved for summary judgment.

In opposition to the subcontractor’s motion for summary judgment, the general contractor argued that the subcontractor’s work was not properly performed, which led to cracks in the concrete.  The contractor also argued that since the parties’ agreement was for $40,000 it was not required to pay the subcontractor the $41,800 billed for the completed work. The contractor also claimed that the debt due to the subcontractor had been consolidated with monies due on other projects, which were settled and paid.  However, the contractor did not indicate the amount of the settlement, or how or when it was paid.  According to the general contractor, proof of the settlement and payment had been lost in a flood.

In response, the subcontractor submitted evidence that the owner had paid the general contractor in full for the subcontractor’s work, that the general contractor never complained of the quality of the subcontractor’s work until after the lawsuit was commenced, that only $40,000 was being claimed as due in the lawsuit, that no such settlement or payment ever occurred, and that the subcontractor was entitled to be paid as agreed for the work performed and completed.


The court granted summary judgment in favor of the subcontractor as to liability and directed a trial as to the amount of money actually due to the subcontractor.  According to the court, the subcontractor established that the general contractor agreed to pay the subcontractor $40,000 for its work at the project; the subcontractor performed its work at the project in accordance with its initial proposal and estimate; the general contractor received payment in full from the owner; and the general contractor failed to pay the subcontractor any monies with respect to the work performed.

As to the general contractor’s claim that the parties had agreed to settle the debt due to the subcontractor together with the debt owed on other jobs, the court noted that the alleged settlement payment was by check, and notwithstanding the alleged flood, the general contractor could have obtained duplicate records from its banking institution, which the general contractor failed to do.  Under these circumstances, the court determined that the grant of summary judgment in favor of the subcontractor was appropriate.


It is difficult to persuade a court to grant summary judgment without a trial because in most cases credibility questions require a trial.  Here, however, the general contractor failed to produce any documents to justify his refusal to make payment to the subcontractor.  If there is no material factual dispute to decide, why have a trial?  It was therefore appropriate for the court to grant summary judgment to the subcontractor.

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