DECISION AND ORDER
Vornado Realty Trust (“Vornado”), Alexander’s Inc., Alexander’s of Brooklyn, Inc., Alexander’s Kings Plaza Center, Inc. (“AKPC”), and Commerce and Industry Company a/s/o Alexander’s Kings Plaza, LLC (“AKP”) (collectively, “Plaintiffs”), initiated this action for damages against the above-captioned defendants based on an oil leak discovered on July 6, 2006 at the Kings Plaza Shopping Center (“the Site”) in Brooklyn, New York. Plaintiffs seek to recover from the named defendants clean-up and remediation costs allegedly resulting from the leak. On September 30, 2011, the Court denied motions for summary judgment brought by Defendant IVI Environmental Inc. (“IVI”) and Defendant Castlton Environmental Contractors, LLC (“CEC”) (collectively, “Defendants”). On November 16, 2011, the Court denied Defendants’ respective motions for reconsideration. Before the Court are Defendants’ Renewed Motions for Summary Judgment pursuant to Federal Rule of Civil Procedure 54(b). For the reasons set forth below, the Court grants Defendants’ Renewed Motions for Summary Judgment and directs the Clerk of Court to enter judgment in favor of Defendants.
BACKGROUND
I. The State Court Action and the Release
Pursuant to a “Master Agreement” dated June 4, 1998, with Vornado, as agent for AKPC and AKP, IVI agreed to perform certain site investigation and remediation services at the Site, including the replacement of existing underground soil storage tanks (“USTs”) and the installation of new USTs. IVI 56.1 St. at ¶ 1. On May 3, 2002, Vornado terminated the Master Agreement and revoked all permission for IVI to access the Site. Id. at ¶ 2.
On July 23, 2002, IVI commenced an action in the Supreme Court of the State
The Release states, in pertinent part: WHEREAS, on or about February 7, 2003, ALEXANDER’S KINGS PLAZA CENTER, INC. and ALEXANDER’S KINGS PLAZA, LLC served an answer and counterclaims to the second amended complaint by IVI ENVIRONMENTAL, INC., which counterclaims seek to recover damages for breach of contract, negligence, malpractice and conversion from IVI ENVIRONMENTAL, INC.; and
WHEREAS, IVI ENVIRONMENTAL, INC., ALEXANDER’S KINGS PLAZA CENTER, INC., ALEXANDER’S KINGS PLAZA, LLC and FIDELITY AND DEPOSIT COMPANY OF MARYLAND desire to settle the Kings Plaza Action, including' all counterclaims, and discharge and cancel the Bond.
3. ALEXANDER’S KINGS PLAZA CENTER, INC., ALEXANDER’S KINGS PLAZA, LLC and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, for themselves and for their predecessors and successors in interest, affiliates, principals, directors, officers, shareholders, partners, members, managing members, agents, employees and assigns ... hereby releases and discharges IVI ENVIRONMENTAL, INC ... and [IVI’s] ... agents .... from all actions, causes of action, suits, debts, sums of money, accounts, reckonings, bills, bonds, specialties, contracts, covenants, controversies, agreements, promises, variances, trespasses, judgments, damages, executions, claims and demands whatsoever, in law, admiralty or equity, which against the RELEASEES, the RELEASOR, RELEASOR’S heirs, executors, administrators, successors, and assigns ever had, now have or hereafter can, shall or may, have for, upon, or by reason of any matter, cause or thing arising from or relating to services rendered by IVI ENVIRONMENTAL, INC. in connection with the Kings Plaza Shopping Center.
4. It is hereby mutually understood and agreed that this settlement is a compromise of disputed claims and is not to be construed or interpreted in any way as an admission of liability on the part of ALEXANDER’SKINGS PLAZA CENTER, INC., ALEXANDER’S KINGS PLAZA, LLC and FIDELITY AND DEPOSIT COMPANY OF MARYLAND or by IVI ENVIRONMENTAL, INC. on the counterclaims, such liability and/or responsibility being hereby expressly denied.
6. This RELEASE is intended to, and does finally and fully terminate and dispose of all claims and demands which have been or may be asserted at law or equity arising from or relating to the services rendered by IVI ENVIRONMENTAL, INC. in connection with the Kings Plaza Shopping Center, including all attorneys’ fees and expenses that the parties may have incurred to date.
7. The signatories of this RELEASE hereby specifically state that they have executed this RELEASE voluntarily and are fully aware of the provisions of this RELEASE and the ramifications thereof.
8. This RELEASE may not be changed orally and contains the entire agreement between the parties hereto. The terms of this RELEASE are contractual and not a mere recital.
McNulty Decl., Ex. F.
II. CEC’s Involvement and the Bankruptcy Action
IVI subcontracted removal and replacement work to Castlton Excavating, Inc. d/b/a Castlton Environmental Contractors, Inc. (“Old Castlton”) at the Kings Plaza Shopping Center. CEC 56.1 St. at ¶ 1. Old Castlton was owned and operated by a parent company, commonly known as Invatech, Inc. (“Invatech”). Id. at ¶ 6. On or about September 30, 2003, Invatech filed for Chapter 11 bankruptcy protection in the U.S. Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”), and the board of directors filed an application for Chapter 11 bankruptcy protection for Old Castlton. Id. at ¶¶ 7-8.
Environmental Acquisition Company, LLC (“EAC”) submitted bids to the Bankruptcy Court and, on April 16, 2004, the Bankruptcy Court issued an Order (“the Sale Order”), approving the sale of certain assets bid on by EAC. Id. at ¶ 9. The Bankruptcy Court ordered that the transfer of assets to EAC did not and would not subject it to any liability for claims against Old Castlton. Id. These assets were later transferred to Defendant CEC. Id. at ¶ 10.
III. The Present Action and Denial of Summary Judgment
On July 6, 2006, Plaintiffs discovered an oil leak at the Site. Second Am. Compl. at ¶ 34. An investigation determined that the oil leak was caused by a problem with the UST system, which had been installed by Old Castlton as subcontractor for IVI. Id. at ¶¶ 36-39, 87, 90, Plaintiffs brought this action against Defendants, as well as other parties, to recover the costs of environmental investigation, removal, remediation, and clean up arising from the oil leak.
' In this action, IVI and CEC previously moved for summary judgment to dismiss Plaintiffs Complaint on the basis that in July 2003, the Plaintiffs released all claims against IVI related to IVI’s work at the Site. IVI 56.1 St. at ¶ 10. On September 30, 2011, the Court denied Defendants’ motions for summary judgment, finding that although “[a]t first glanc'e the language of the Release is clear and unambiguous,” the several “Whereas” statements that reference the claims at issue in the State Court Action “imply that, although the Release contains general language releasing the parties from any further liabili
On October 11, 2011, this matter was reassigned from Judge Dora Irizarry to Judge William F. Kuntz, II. Though Defendants filed motions for reconsideration after the case was reassigned to Judge Kuntz, Judge Irizarry entertained the motions for the sake of judicial economy because they concerned Judge Irizarry’s earlier order denying summary judgment. On October 19, 2011, this Court stayed discovery. See Dkt. No. 209.
On November 16, 2011, the Court denied Defendants’ respective motions for reconsideration. Vornado Realty Trust v. Castlton Envtl. Contractors, LLC ("Vornado II”), No. 08-CV-4823,
On September 20, 2012, the Court lifted the stay of discovery. See Dkt. No. 227.
IV. Deposition of Joseph Macnow
Joseph Macnow was the signatory of the Release on behalf of AKPC and AKP. IVI 56.1 St. at ¶ 17. When IVI filed its Answer to the First Amended Complaint on January 29, 2009, it attached a copy of the Release, which bore Mr. Macnow’s signature. See Dkt. No. 29.
In their initial discovery responses, dated March 31, 2009, Plaintiffs did not identify any individuals with information regarding the scope or meaning of the Release. McNulty Deck, Ex. A. Plaintiffs did not identify Mr. Macnow as an individual likely to have information regarding the terms of the Release until it produced supplemental disclosures on March 5, 2013. McNulty Deck, Ex. B at 2-3 (“Mr. Macnow has knowledge of ... the scope of the Settlement Agreement and Mutual Releases (‘Release’) dated September 11, 2003, which resolved the prior state court litigation between Plaintiffs [AKPC] and [AKP] and IVI.”). Indeed, the only corporate representative or witness identified by Plaintiff’s supplemental disclosures as having knowledge or information regarding the Release was Mr. Macnow.
On April 30, 2013, IVI took the deposition of Mr. Macnow. IVI 56.1 St. at ¶ 17. When asked about the scope of the Release, Mr. Macnow testified as follows:
Q: You agree with me that IVI was giving a release to Alexander’s Kings Plaza Center for any and all claims that it had in connection with the Master Agreement and the services that were rendered by IVI at the site, correct?
MR. BARNES: Same objections.
A: I think that’s what the words say.
Q: And it was receiving a $90,000 payment in return for giving that full release, correct?
Q: Okay.
And, in addition to that, Vornado was giving a release to IVI, was it not? When I say “Vornado,” Alexander’s Kings Plaza was giving a release to IVI, was it not?
MR. BARNES: Same objections.
A: Yes, it was.
Q: And Alexander’s Kings Plaza was giving a release of any and all past, present or future claims that it had arising from the agreement that it entered into with IVI, is that right? A: Yes.
MR. BARNES: Same objections.
Also objection as to form regarding excerpting from the release.
A: That’s what it says.
Q: Referring you to paragraph 7 which reads, “The signatories of this release hereby specifically state that they have executed this release voluntarily and are fully aware of the provisions of this release and the ramifications thereof.”
Do you see that?
MR. BARNES: Same objections.
A: I do see it.
Q: And that was the understanding of Alexander’s when they called upon you to execute this agreement on their behalf?
MR. BARNES: Same objections.
A: It was.
McNulty Deck, Ex. M at 118:5-119:8, 121:14-122:3.
Mr. Macnow also testified as to the parties’ intent with respect to any exceptions or carve-outs in the Release so as to allow Plaintiffs to file another lawsuit against IVI for claims arising from the Master Agreement:
Q: Mr. Macnow, we talked a little bit about the allegations and the claims that were asserted by both IVI and Alexander’s in connection with the lawsuit that was filed back in 2002. Was it your understanding that based on the Settlement Agreement and Mutual Releases exchanged between the parties, that IVI was agreeing to compromise its claims of $177,000 for unpaid services as well as $326,000 as alleged in the fourth cause of action of its Second Amended Complaint for 590,000?
A: Yes.
Q: And was it also your understanding that by way of the Settlement Agreement of Mutual Release, that Alexander’s was agreeing to forego and compromise its $3 million claim in return for the release it was getting from IVI?
MR. BARNES: Same objections as before. 'Calls for speculation. Asked and answered and lack of foundation.
A: Yes.
Q: Do you recall ever having any conversations with Mr. Zubcak regarding the settlement and mutual release in which he told you that there were any exceptions or carve-outs that Vornado understood to be part of the settlement it was entering into with IVI? MR. BARNES: Same objections as before. And also as to form.
A: I don’t recall.
McNulty Deck, Ex. D. at 125:2-126:3.
V. Affidavit of Mario De Stefanis
Mario De Stefanis is the Vice President of IVI and executed the Release on behalf
Mr. De Stefanis’ deposition testimony reflects his understanding that the Release would prevent Plaintiffs from bringing any future claims arising out of the Master Agreement:
• “The facts are that we were provided with a full release for Vornado for all the work we’ve done in this and frankly I’m a little confused why I’m here on that.”
• “Not sure after our full release why we’re even involved [in this case].”
• “[they’re dragging me into something that I’ve been released from.”
• “We’ve already been provided a release on this thing.”
• ‘We had a pay dispute and went back and forth, I liened the property and basically we agreed to go our separate ways with the full release which cost me approximately $90,000 in money.”
McNulty Deck, Ex. H at 17:19-22, 50:17-18, 88:10-11, 88:19-20,150:24-151:4.
LEGAL STANDARD
Federal Rule of Civil Procedure 54(b) provides that “any order or other decision ... that adjudicates fewer than all the claims ... does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” Rule 54(b) gives district courts broad discretion to reconsider, reverse, or modify interlocutory orders previously entered in a case. See, e.g., Parmar v. Jeetish Imports, Inc.,
However, “[e]ven if Rule 54(b) allows parties to request district courts to revisit earlier rulings, the moving party must do so within the strictures of the law of the case doctrine.” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd.,
“[B]ecause the denial of a motion for summary judgment is an interlocutory order, the trial court is free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law.” Nabisco v. Warner-Lambert Co.,
DISCUSSION
I. The Release Extends to Plaintiffs’ Claims Against IVI in This Action
The Court concludes that it must reverse the September 30, 2011 and November 16, 2011 decisions of this Court to prevent manifest injustice. Those earlier decisions rested on the Court’s finding that the Release was ambiguous as to whether it applied only to the specific claims and counterclaims at issue in the State Court Action or whether the parties intended to release any and all past, present, and future claims arising from TVI’s work at the Site. This Court now finds that the broad language of the Release is unambiguous. The language of the Release is clear, and it would be a manifest injustice to deprive IVI of the benefit of the bargain it struck with Plaintiffs to settle the State Court Action, Therefore, to prevent manifest injustice, the Court grants summary judgment to IVI.
“Where a contract is clear and unambiguous on its face, the intent of the parties must be gleaned within the four corners of the instrument, and not from extrinsic evidence.” RJE Corp. v. Northville Indus. Corp.,
When a release is executed “in a commercial context by parties in roughly equivalent bargaining positions and with ready access to counsel, the general rule is that if ‘the language of the release is clear ... the intent of the parties [is] indicated by the language employed.’ ” Consorcio Prodipe, S.A. de C.V. v. Vinci, S.A.,
General releases are sometimes “avoided with respect to uncontemplated transactions despite the generality of the language in the release form.” Mangini v. McClurg,
This is not to say that a release may be treated lightly. It is a jural act of high significance without which the settlement of disputes would be rendered all but impossible. It should never be converted into a starting point for renewed litigation except under circumstances and under rules which would render any other result a grave injustice. It is for this reason that the traditional bases for setting aside written agreements, namely, duress, illegality, fraud, or mutual mistake, must be established or else the release stands.
Id. at 563,
The Court concludes the Release is clear and unambiguous. Therefore, the Court must glean the parties’ intent from the four corners of the document. Paragraph Three of the Release expressly released IVI from “all actions, causes of action, [or] suits ... whatsoever,” which Plaintiffs “now have or hereafter can, shall or may, have for, upon, or by reason of any matter, cause or thing arising from or relating to services rendered by IVI ... in connection with the Kings Plaza Shopping
Contrary to the findings of the previous interlocutory orders, this Court concludes the Release is not rendered ambiguous by the introductory “Whereas” statements or by Paragraph Four. While it is true that general words of release are sometimes “limited by the recital of a particular claim,” Green v. Lake Placid 1980 Olympic Games,
Unlike in Green, the State Court Action and the present dispute both arose from IVI’s work under a single contract. Unlike in Gettner, the State Court Action did not involve a mere payment dispute. Plaintiffs lodged counterclaims against IVI for breach of contract, negligence, malpractice and conversion arising from IVI’s work at the Kings Plaza Shopping Center. As such, the “Whereas” statements and Paragraph Four of the Release did not limit the Release to the specific claims and counterclaims in the State Court Action. Instead, because Plaintiffs’ counterclaims in the State Court Action arose from IVI’s
II. CEC Is Also Entitled to Summary Judgment as an Agent of IVI
Because the Release expressly applies to rVTs agents, and because Old Castlton was an agent of IVI, CEC is also entitled to summary judgment.
A. The Unsigned Agreement Is Not Binding
To determine whether an unsigned agreement constitutes a binding contract between two parties, courts in the Second Circuit consider the following factors: “(1) whether there is an expressed reservation of the right not to be bound in the absence of a writing; (2) whether there has been partial performance of the contract; (3) whether all of the terms of the alleged contract have been agreed upon; and (4) whether the agreement at issue is the type of contract that is usually committed to writing.” Brown v. Cara,
The first factor is “frequently the most important.” Id. The cover page of the unsigned agreement between IVI and Old Castlton directs a representative of Old Castlton to “sign the enclosed Contract Agreement form and mail the original copy back to our office.” Barnes Decl., Ex. F. The signature page similarly requests Old Castlton to “acknowledge acceptance of the terms and conditions of this Contract Agreement by signing and returning to us an original copy.” Id. Despite this repeated language, the agreement does not contain any signatures acknowledging acceptance of the terms and formation of a contract. Furthermore, the signature page states the agreement “represents the entire agreement between IVI and the CONTRACTOR, supersedes all prior agreements and understandings, and may be changed only by written amendment executed by both parties.” Id. Paragraph Nine of the unsigned agreement contains a similar clause, stating “[t]he terms, instructions and conditions on the face and in the body of this Contract Agreement ... constitute the entire agreement between the parties hereto and any modification of this Contract Agreement to be valid must be in writing and signed by the Construction Manager’s authorized representative.” Id. “The presence of such a merger clause is persuasive evidence that the parties did not intend to be bound prior to the execution of the written agreement.” Nat’l Gear & Piston, Inc. v. Cummins Power Sys.,
The record is sparse as to the three remaining factors. However, as noted earlier, the first factor is frequently the most important. Indeed, “the second factor of partial performance is not dispositive, and in some cases it is given little weight.” Id.; see also United States v. U.S. Currency in the Sum of $660,200,
B. Old Castlton Was the Agent of IVI
As the record does not reflect a binding written agreement defining the nature of the relationship between IVI and Old Castlton, the Court must determine whether an agency relationship existed through the parties’ conduct. In New York, an agency relationship requires the following elements: “(1) manifestation by the principal that the agent shall act for him; (2) the agent accepted the undertaking; and (3) an understanding between the parties that the principal is to be in control of the undertaking.” Spagnola v. Chubb Corp.,
Based on the record, no reasonable jury could fail to conclude that Old Castlton was the agent of IVI. According to the Master Agreement between Plaintiffs and IVI, IVI had authority to remove and replace USTs at the Site. McNulty Deck, Ex. A at 8.
CONCLUSION
For the reasons stated above, Defendants’ renewed motions for summary judgment are granted in their entirety. All claims against Defendants are dismissed with prejudice. The Clerk is directed to enter judgment for Defendants in accordance with this Decision and Order and to close the case.
SO ORDERED
Notes
. IVI submitted two Declarations of Joseph P. McNulty in support of its renewed motion for summary judgment each including its own set of exhibits. Unless otherwise specified, citations to “McNulty Decl.” refer to the second of the two declarations and its attendant exhibits. See Dkt. No. 296-15.
. This citation is to the first of the two McNulty Declarations.
. While the Court does not rely on extrinsic evidence in its reading of the unambiguously worded contract, the Court notes that the deposition testimony of Mr. Macnow and Mr. De Stefanis, the signatories who executed the Release on behalf of the parties, is consistent with the Court's conclusion that the Release covers any and all claims arising from IVI’s work at the Kings Plaza Shopping Center.
. The Court’s September 30, 2011 interlocutory decision concluded there were genuine issues of material fact as to whether CEC is a successor in interest to Old Castlton. For the sake of this motion, the Court assumes CEC is a successor in interest to Old Castlton, exposing it to liabilities attached to assets purchased in the bankruptcy sale of Old Castlton’s assets.
. This citation is to the first of the two McNuIty Declarations.