By: WBG, LLP Thomas H. Welby Published: October 2007

Summary Judgment Denied Where Subcontractor Fails to Perform

Summary judgment allows a party to obtain a judgment from the court on a claim without the necessity of a trial. A summary judgment motion is quite attractive to litigants, since a successful motion allows the moving party to save the time and expense associated with a trial.

While summary judgment is a useful tool, not only for obtaining a judgment, but also for narrowing the issues in a case, it is also viewed by the courts as a drastic remedy. A court will grant a motion for summary judgment only if the moving party can establish that no material facts are in dispute.

As demonstrated in the recent case of Techcon Contracting, Inc. v. Incorporated Village of Lynbrook, the moving party carries a heavy burden when attempting to show that there are no factual disputes for a judge or a jury to decide at trial.


Techcon Contracting, Inc., a general contractor, entered into a public construction contract with the Village of Lynbrook to perform certain roadway improvements. Techcon later entered into a subcontract with Lizza & Sons Paving, Inc. to perform grading and paving work at the project.

After having performed work at the project without receiving payment from Techcon, Lizza was forced to suspend its work in July 2002. In October 2002, Lizza sent an invoice to Techcon requesting payment for the work it performed at the project. Techcon never contested or paid the invoice.

Lizza sued Techcon for the monies it claimed were owed and moved for summary judgment. In support of its motion for summary judgment, Lizza submitted an affidavit from Lynbrook’s Superintendent of Public Works, stating that Lynbrook had no problems with the materials Lizza provided or the work Lizza performed. Lynbrook’s Superintendent also stated that Lizza’s work was performed in a timely and professional manner.

In contesting Lizza’s summary judgment motion, Techcon pointed to numerous problems it had with Lizza, including Lizza’s failure to submit certified payrolls for work performed in July, Lizza’s pushing of sub-base material into a manhole, which clogged a sewer, and Lizza’s failure to install the contractually specified high density, stress relief interlayer crack tape.


The Court ruled in favor of Techcon, denying Lizza’s motion for summary judgment. In doing so, the Court looked no further than to the language of the subcontract. The Court noted that the subcontract had three conditions for Lizza to receive payment: (1.) That all work was performed in accordance with the contract documents, plans and specifications provided to Techcon by Lynbrook and the project engineer, Cameron Engineering; (2.) That all work be approved by Cameron Engineering; and (3.) That agreed upon unit prices would be paid for quantities measured and approved by Cameron. The Court held that Lizza failed to meet any of these criteria.

In relying upon and quoting previous judicial opinions, the Court stated that a “contract will be interpreted in accordance with the intent of the parties as expressed in the language of the agreement” and “the terms of an agreement are to be interpreted in accordance with their plain meaning.” Since the affidavit from Lynbrook’s Superintendent of Public Works failed to establish any of the three conditions required for Lizza to receive payment, Lizza’s reliance on the affidavit was misplaced. According to the Court, even though the affidavit stated that Lizza’s work was performed in a timely and professional manner, that was not all the contract required.

Given that Lizza’s motion was for summary judgment, the Court could not grant the motion unless there were no material facts in dispute. Since each of the above prerequisites for payment were disputed, the Court was compelled to deny Lizza’s motion.


Courts will strictly construe the terms of the parties’ agreement. This means that the courts will make certain that there has been strict compliance with the specific terms and conditions required by the agreement. Here, Lizza’s motion for summary judgment was denied because it was disputed whether Lizza fully performed pursuant to the express terms and conditions of the parties’ agreement. Disputed issues of material fact will time and again bar the grant of summary judgment.

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