Port Chester Electrical Construction Corp. v. Hbe Corporation and the Fireman's Fund Insurance Company

89 F.3d 826 NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23. PORT CHESTER ELECTRICAL CONSTRUCTION CORP., Plaintiff-Appellant v. HBE CORPORATION and the Fireman's Fund Insurance Company, Defendants-Appellees No. 95-7217. United States Court of Appeals, Second Circuit. Nov. 14, 1995. — 1 — Appeal from the United States District Court for the Southern District of New York (Gershon, Magistrate Judge). — 2 — APPEARING FOR APPELLANT: IRA M. SHULMAN, Ross & Cohen, LLP, New York, NY. — 3 — APPEARING FOR APPELLEE: J. SCOTT GREER, Lewis & Greer, P.C., Poughkeepsie, NY. — 4 — S.D.N.Y. — 5 — AFFIRMED. — 6 — This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York and was argued by counsel. — 7 — ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is hereby affirmed. — 8 — This case comes before this Court for the third time. Plaintiff Port Chester Electrical Construction Corporation ("Port Chester") was a subcontractor on a hospital project for which defendant HBE Corporation ("HBE") was the general contractor. Defendant Firemen's Fund Insurance Company was HBE's payment bond surety with joint liability. Plaintiff brought suit to recover for delay damages resulting from changes in work after January 1, 1984. On remand from our decision in Port Chester Elec. Constr. Corp. v. HBE Corp., 978 F.2d 820 (2d Cir.1992) ("Port Chester II"), the district court dismissed plaintiff's complaint in an opinion and order dated January 9, 1995. We affirm for substantially the reasons stated in the district court's opinion.