OPINION & ORDER Plaintiff Metra Industries, Inc., (“Plaintiff”) brings this Action against Defendant Rockland County, New York (the “County” or “Defendant”), alleging that Defendant has breached its contractual obligations in refusing to pay for work Plaintiff was contracted to perform. (See Compl. (Dkt. No. 1).) Before the Court is Plaintiff’s Motion for Partial Summary Judgment as related to the release of the $300,816.22 in retainage alleged to be due to Plaintiff under the contract. (See Dkt. No. 24.) For the reasons to follow, the Motion is denied.:I. BackgroundA. Factual BackgroundIn resolving Plaintiff’s Motion for Partial Summary Judgment, the Court will recite only either undisputed facts or those set forth by Defendant and supported by the record. The Court will not, except as noted, set forth Plaintiff’s version of the facts where disputed.On September 3, 2013, the Parties entered into a contract (the “Contract”) pursuant to which Plaintiff was selected as the general contractor for the County’s Pascack Brook Bypass Culvert Project (the “Project”). (See Pl.’s Local Rule 56.1 Statement of Material Facts (“Pl.’s 56.1″) 2 (Dkt. No. 26); Def.’s Counterstatement to Pl.’s Rule 56.1 Statement of Material Facts (“Def.’s 56.1 Resp.”) 2 (Dkt. No. 28); Aff. of Kent Rigg (“Rigg Aff.”) 3 (Dkt. No. 28).) Pursuant to the Contract, Plaintiff was to “furnish and install approximately 1,572 lineal feet of 15′ x 7′ precast box culverts, 38 precast sewer manholes, 2,761 feet of PVC gravity sewer pipe…, two sanitary siphon chambers, all drainage structures[,]…and edge-to-edge road reconstruction.” (Pl.’s 56.1 4; Def.’s 56.1 Resp. 4.) The Contract specified that Plaintiff would be paid an amount not to exceed $8,900,000. (See Rigg Aff. 5.)The Contract incorporated by reference the Project Specifications and Addendums issued by the County, (see id. 6), which were incorporated as revised on May 23, 2013 (the “Revised Specifications”), (see id.). The Revised Specifications specifically allowed for the County to retain five percent from the monthly payments to Plaintiff until the completion and acceptance of all work covered by the Contract. (See id. 7; Pl.’s 56.1 7.) Under the Contract, the County would make its final payment, including the retainage amount, once Plaintiff furnished the following documents: (1) Agreement of Surety Company to Final Payment; (2) Contractors Affidavit of Payment; (3) Certificate of Substantial Completion; and (4) General Release. (See Rigg Aff. Ex. 1 (“Revised Specifications”) at 28.)As the work was done on the Project, Plaintiff submitted monthly payment applications to the County on the County’s “Standard Voucher Form,” in accordance with the terms of the Contract, less the five percent retainage. (Pl.’s 56.1
6-7; Def.’s 56.1 Resp.
