Full opinion text
MEMORANDUM DECISION AND ORDER LISA MARGARET SMITH, United States Magistrate Judge. Plaintiff International Fidelity Insurance Company (“IFIC”) and defendant Fidelity and Guaranty Insurance Company (“F & G”) have both submitted motions for summary judgment in this action, in which several of the parties involved in a construction project dispute who is liable for which portion of the damages resulting from a construction delay. Pursuant to the provisions of 28 U.S.C. § 636(c), the parties have consented to conduct all proceedings in this case before me. Plaintiff IFIC is a surety company that took over the construction contract of its principal, a construction company, after that principal defaulted. Defendant County of Rockland (the “County”) is the entity for whom the construction was being performed. As a result of the initial default and the ensuing delays, the County now asserts that IFIC is responsible for millions of dollars in delay damages. Plaintiff IFIC, on the other hand, says that it owes the County nothing because the County’s claim is time-barred, and that the County owes IFIC over $100,000 in unpaid funds that were due to IFIC under the contracts between them. IFIC’s motion for summary judgment asks three things: (1) that the Court dismiss as time-barred the counterclaims for delay damages brought against it by the County; (2) that the Court award to IFIC the funds, constituting the remaining balance of the initial contract price, that IFIC says are due to it from the County under the contracts between those parties; and (3) that if the County’s claims are not dismissed, the Court limit IFIC’s liability to the County to the penal sum of the performance bond that IFIC executed as surety to the initial contractor (minus those unreimbursed sums that IFIC has already paid in completion of the project). Defendant F & G is also a surety company, and it provided the performance bond for the contractor IFIC hired to complete the construction project after IFIC’s original principal defaulted. Because F & G’s principal also failed to complete its performance on time, IFIC brought “claims over” against F & G, demanding that F & G reimburse IFIC for any money IFIC may ultimately owe to the County because of the construction delays. In F & G’s summary judgment motion, F & G reiterates two of IFIC’s requests — that the County’s counterclaims against IFIC be dismissed, and that alternatively IFIC’s liability be limited to the penal sum of its bond — and adds two others: (1) that the Court dismiss any “claims over” that IFIC may ultimately bring against F & G, because IFIC assertedly failed to comply with certain conditions precedent in the F & G bond; and (2) that if those claims over are not dismissed, the Court limit F & G’s liability to IFIC to a sum that does not exceed the penal sum of F & G’s bond, as well as to damages accrued only during a certain specified time period. For the reasons discussed below, IFIC’s motion for summary judgment is granted in part and denied in part, and F & G’s motion for summary judgment is also granted in part and denied in part. STANDARD FOR SUMMARY JUDGMENT IN A CONTRACT ACTION In accordance with Federal Rule of Civil Procedure 56(c), “[a] motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law.” Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir.1995); see generally Celotex Corp. v. Catrett, 477 U.S. 317, 320-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[A]ll ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party.” Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir.1988); see also Celotex, 477 U.S. at 330 n. 2, 106 S.Ct. 2548. In contract disputes, the Second Circuit has repeatedly held that summary judgment may be granted only where the language of the contract is unambiguous. See, e.g., Sayers v. Rochester Tel. Corp., 7 F.3d 1091, 1094 (2d Cir.1993). Under New York law, whether a written contract is ambiguous is a question of law for the trial court whose determinations will be reviewed de novo. W.W.W. Assoc., Inc. v. Giancontieri, 11 N.Y.2d 157, 163, 565 N.Y.S.2d 440, 443, 566 N.E.2d 639 (1990). Contract terms are ambiguous if they are capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business. Sayers, 7 F.3d at 1095 (internal quotation marks omitted). When the relevant language has “a definite and precise meaning, unattended by danger of misconception in the purport of the [contract] itself, and concerning which there is no reasonable basis for a difference of opinion,” no ambiguity exists. Breed v. Ins. Co. of North America, 46 N.Y.2d 351, 355, 413 N.Y.S.2d 352, 355, 385 N.E.2d 1280 (1978). Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1192 (2d Cir.1996). In Sayers, the Second Circuit added that, even where parties dispute the meaning of specific contract clauses, a court’s task is to determine whether such clauses are ambiguous when “read in the context of the entire agreement.” W.W.W. Assocs., 77 N.Y.2d at 163, 565 N.Y.S.2d 440, 566 N.E.2d 639; see also Williams Press, Inc. v. State, 37 N.Y.2d 434, 440, 373 N.Y.S.2d 72, 335 N.E.2d 299 (1975). By examining the entire contract, we safeguard against adopting an interpretation that would render any individual provision superfluous. See Two Guys from Harrison-N.Y., Inc. v. S.F.R. Realty Assocs., 63 N.Y.2d 396, 403, 482 N.Y.S.2d 465, 472 N.E.2d 315 (1984).... Parties to a contract may. not create an ambiguity merely by urging conflicting interpretations of their agreement. Sayers, 7 F.3d at 1095 (some internal citations omitted); see also General Authority for Supply Commodities, Cairo, Egypt v. Ins. Co. of North America, 951 F.Supp. 1097, 1108 (S.D.N.Y.1997). New York courts have held that “The interpretation of a contract of surety-ship is governed by the standards which govern the interpretation of contracts in general.” General Phoenix Corp. v. Cabot, 300 N.Y. 87, 92, 89 N.E.2d 238 (1949). As far back as 1889, the Court of Appeals said that “No citation of authorities is needed to show that the contracts' of sureties are to be construed like- other contracts so as to give effect to the intention of the parties. In ascertaining that intention, we are to read the language used by the parties in light of the circumstances surrounding the execution of the instrument, and, when we have thus ascertained their meaning, we are to give it effect[.]” People v. Backus, 117 N.Y. 196, 201, 22 N.E. 759 (1889). The Backus court then added, “when the meaning of the language used has been thus ascertained, the responsibility of the surety is not to be extended or enlarged by implication or construction, and is strictissimi juris.” Id. When applying the Backus standard to a case governed by New York law that involves a compensated surety, [t]he rule that the liability of a surety is strictissimi juris does not in any sense mean that a suretyship contract is subject to rules of interpretation different from those applicable to any other contract. It simply means that once the intention of the parties to a suretyship agreement has been ascertained, the courts will guard the right of the surety, and protect him [, her, or it] against a liability which is not strictly within the terms of his [, her, or its] contract. 63 N.Y. Jur 2d, Guaranty & Suretyship § 117 (1987) (citing id. at § 88; Argyle v. Plunkett, 226 N.Y. 306 [, 310], 124 N.E. 1 (1919) (“a surety is not entitled to any particular tenderness in the interpretation of the language of a contract which it has executed.... When, however, the contract has thus been interpreted the surety is entitled to a strict limitation of its obligations in accordance with such interpretation”)). In fact, in cases in which New York courts have suggested that any deviation from the general rules of interpretation should apply when interpreting surety bonds, they have counseled, at least in the case of compensated sureties, interpretation against the surety. See, e.g., McClare v. Massachusetts Bonding & Ins. Co., 266 N.Y. 371, 377, 195 N.E. 15 (1935) (“where a compensated surety has issued a standard form of bond, it is to be interpreted liberally, and all- ambiguities are to be resolved in favor of those for whose benefit the bond is given”); see also Novak & Co. v. Travelers Indem. Co., 85 Misc.2d 957, 381 N.Y.S.2d 646 (N.Y.Sup.Ct.1976), aff'd, 56 A.D.2d 418, 392 N.Y.S.2d 901 (2d Dep’t 1977) (bond of compensated surety is to be construed liberally in the interest of prom-isee and beneficiary rather than strictissi-mi juris, and ambiguities aré to be resolved in favor of beneficiary); Dupack v. Nationwide Leisure Corp., 73 A.D.2d 903, 905, 424 N.Y.S.2d 436 (1st Dep’t 1980). The rule of strictissimi juris is not rigidly to be applied where a surety bond is executed for a consideration by a corporation organized for the purpose of doing business as a surety — that is, in the case of compensated sureties or surety companies — particularly with regard to evaluating the requirements an obligee must satisfy to invoke a surety’s liability. 63 N.Y. Jur 2d, id. §§ 118, 522; McKegney v. Illinois Surety Co., 170 A.D. 261, 155 N.Y.S. 1041 (1st Dep’t 1915); Hunt v. Bankers & Shippers Ins. Co., 60 A.D.2d 781, 400 N.Y.S.2d 645 (4th Dep’t 1977), app. after remand on other grounds, 73 A.D.2d 797, 423 N.Y.S.2d 718 (4th Dep’t 1979), aff'd, 50 N.Y.2d 938, 431 N.Y.S.2d 454, 409 N.E.2d 928 (1980). In McKegney, the Court noted that “ ‘The rule of strictissimi juris is a stringent one, and is liable at times to work a practical injustice. It is one which ought not to be extended to contracts not within the reason of the rule, particularly when the bond is underwritten’ ” for profit by a corporation, id. at 264, 155 N.Y.S. 1041 (quoting United States Fidelity & Guaranty Co. v. United States, 191 U.S. 416, 24 S.Ct. 142, 48 L.Ed. 242 (1903)). Therefore, the McKegney court concluded, “the rule of strictissimi juris does not apply, at least so far as nonessentials are concerned,” to compensated surety companies. McKegney, id. In such cases, where the liability of the surety may depend upon the performance by the obligee of some act or the fulfillment of a condition, including performance of a condition precedent, the rule may be relaxed and the surety’s liability may be predicated upon substantial performance by the obligee of the act. 63 N.Y. Jur 2d, id., §§ 118 & 522; McKegney, id. (demanding only substantial compliance by obligee with notice requirements in a bond); Hunt, 60 A.D.2d at 783, 400 N.Y.S.2d 645 (requiring only substantial performance by obligee owners of obligations under contracts upon which surety’s liability was conditioned); Bennett v. Brown, 20 N.Y. 99 (1859) (rejecting surety’s defense as being based on overly-literal construction of words of condition); St. John’s College v. Aetna Indem. Co., 201 N.Y. 335, 94 N.E. 994 (1911) (finding that a material alteration of. a contract for whose performance a surety is bound must affect the surety adversely to result in release of surety from its obligation); Newark v. James F. Leary Constr. Co., 118 Misc. 622, 194 N.Y.S. 212 (N.Y.Sup.Ct.1922) (surety company guaranteeing performance of contract is held to rule of substantial performance rather than strict construction of contract). However, while requirements pertaining to the obligee’s performance may be relaxed from the standards that would be required by strict construction of the conditions, New York courts do not apply such flexibility to enforcement of the nature and extent of the surety’s obligation. As noted, once the contract has been interpreted “the surety is entitled to a strict limitation of its obligations in accordance with such interpretation.” Argyle, 226 N.Y. at 310, 124 N.E. 1 (1919) (interpreting and enforcing bond of surety company, and deciding that where obligee required bond conditioned for the faithful performance of the contract and for the payment of all debts incurred for work and materials, but the surety’s undertaking was simply conditioned for the faithful performance of the contract, surety was not liable for payment of debts). See also Bank of Italy v. Merchants’ Nat’l Bank, 236 N.Y. 106, 140 N.E. 211 (1923) (refusing to apply surety’s payment obligation for “dried grapes” to payment obligation for “raisins,” because the two terms might be distinct under trade usage), cert. denied, 264 U.S. 581, 44 S.Ct. 331, 68 L.Ed. 860 (1924); Border v. Frank G. Cook & Sons, 240 A.D. 476, 478, 270 N.Y.S. 229 (4th Dep’t 1934) (refusing to extend liability under the contract of sure-tyship “beyond the limitations fixed by the parties to the undertaking” — in that case, for work done only on a particular building); Buffalo Slag Co. v. H & D Constr. Co., 94 Misc.2d 212, 404 N.Y.S.2d 292 (N.Y.Sup.1978) (limiting surety’s obligation to face amount of bond where surety had not contemplated or consented to increase in amount of liability, or received additional compensation). While ordinarily the liability of a guarantor or surety is equal to the liability of the principal, “the guarantee is a separate undertaking and may impose lesser or even greater collateral responsibility on the guarantor.” American Trading Co., Inc. v. Fish, 42 N.Y.2d 20, 26, 396 N.Y.S.2d 617, 364 N.E.2d 1309 (1977); 63 N.Y. Jur 2d., id., § 553. In general, “the surety bonds attaches to the principal contract and must be construed with it,” Carrols Equities Corp. v. Villnave, 57 A.D.2d 1044, 1045, 395 N.Y.S.2d 800 (4th Dep’t 1977), app. denied, 42 N.Y.2d 810, 399 N.Y.S.2d 1026, 369 N.E.2d 775 (1977), and “the liability of a surety cannot be extended beyond the plain and explicit language of the [bond] contract,” Mendel-Mesick-Cohen-Architects v. Peerless Ins. Co., 74 A.D.2d 712, 712, 426 N.Y.S.2d 124 (3d Dep’t 1980), or beyond the meaning as ascertained by construction, once that meaning has been ascertained. Richardson v. Steuben County, 226 N.Y. 13, 19-20, 122 N.E. 449 (1919); see also 63 N.Y. Jur 2d, id., § 121 and n. 65 (citing cases). BACKGROUND The following facts are taken from the findings of undisputed fact made by this Court (McMahon, J.) in an earlier motion in this case, supplemented by the submissions of the parties for this motion. In those few cases where there is any dispute or uncertainty about a particular fact, that uncertainty is noted along with the source of the pertinent information. It is undisputed that in February of 1994, Rockland County issued a construction contract (the “Contract” or the “Construction Contract”) for the build-out of the ninth floor of the Dr. Robert L. Yeager Health Center (the “Yeager Center”). The Yeager Center is a County-owned nursing facility in Pomona, New York. The original construction contractor was a company called NANCO. Under the Contract, construction was to be substantially completed within 180 days, or by August 8, 1994. Under the terms of the Contract, NAN-CO was required to post payment and performance bonds, naming the County as obligee, to secure the construction project. IFIC stood surety under those bonds, but IFIC was not a party to the underlying Contract. Pursuant to the performance bond, IFIC had the right, in the event of default by NANCO and termination by the County of NANCO’s right to complete the Contract, to either (1) arrange for NANCO to complete the Contract (if the County approved); (2) obtain bids for completion of the Contract from qualified contractors acceptable to the County, and arrange for a contract to be prepared for execution between the County and the new contractor; (3) take over the contractor’s obligations under the original Construction Contract and complete performance through agents or independent contractors; or (4).either waive its right to perform and complete, and tender the amount due to the County, or make a formal denial of liability to the County, citing the reasons therefor. See IFIC’s Performance Bond (“IFIC Bond” or “Bond”), attached as Ex. A to Affidavit of Thomas J. Demski, dated September 17, 1999 (“Demski Aff.”), at ¶ 4. On August 4, 1994, after determining that NANCO would be unable to complete the project in a timely manner, the County' declared NANCO in default. IFIC then exercised its option, under ¶ 4.2 of the Bond, to “Undertake to perform and complete the Construction Contract itself, through its agents or through independent contractors!)]” See IFIC Performance Bond at ¶ 4.2; Brief in Support of Plaintiff International Fidelity Insurance Company’s Motion (“Plaintiffs Brief’) at 13. Accordingly, on October 24, 1994, IFIC and the County executed a Takeover Agreement, pursuant to which IFIC agreed to complete the construction contract in exchange for receipt of payment, “in accordance with the payment terms of the contract,” of the remaining proceeds due under the Construction Contract (the “Balance of the Contract Price”). Takeover Agreement at ¶ 4. The Takeover Agreement provided that all the terms of the underlying Construction Contract were incorporated into the Takeover Agreement by reference. The Takeover Agreement also provided that nothing in it affected any of the rights and obligations of IFIC or the other parties under the terms of the Construction Contract, or under the performance bond issued thereunder by IFIC. See Takeover Agreement, attached as Ex. C to Demski Aff., at ¶ 6 (entitled “Reaffirm Bonds”). It further provided that nothing in the Takeover Agreement would waive either party’s rights with respect to the termination of the Contract by the County, and specifically added that IFIC and the County were entering into the agreement “under a full reservation of all of their rights and defenses and those of the Principal [NAN-CO ].” Id. at ¶ 7. IFIC engaged a company called Hirani Contracting Corporation (“Hirani” or the “Completion Contractor”) to complete the project, and entered into a completion contract (the “Completion Agreement”) with it, under which Hirani agreed to complete all work on the Contract on or before 120 days from the date of the Takeover Agreement — that is, by February 21, 1995 — or by any extended date approved by the Owner. See Completion Agreement, attached as Exhibit 3 to Affidavit and Exhibit in Support of Motion for Summary Judgment of Cecil Holland, Jr., dated September 16, 1999 (“Holland Aff.”), at ¶4. Pursuant to the requirements of its Completion Agreement with IFIC, and as security for the performance of the Completion Agreement, Hirani obtained a performance bond from defendant F & G as surety, naming IFIC as obligee. Hirani was unable to get the work done by the February date specified in the Completion Agreement. However, the County did not default IFIC when the deadline date passed; rather, according to later correspondence prepared by the County, it extended the completion date to September 12, 1995. Hirani continued to work, and the parties agree that the County continued to pay IFIC under the Construction Contract for some period after the initial February deadline date passed, although the assertions as to when the County stopped making those payments range from May to September of 1995. During that period — -in June of 1995, according to F & G’s Rule 56.1 statement— Hirani declared bankruptcy but continued to work on the build-out. The September extended completion date, like the initial February completion date, also passed without completion of the project. The project was finally accepted by the County’s representative as substantially complete on October 5, 1995. Hirani then ceased work without completing the “punch list” of remaining items that it was contractually obligated to complete. IFIC made demands on Hirani and its surety, F & G, to complete the work, but the work was not completed, although the County was able to occupy the facility in December of 1995. On March 6, 1996, the County gave IFIC notice that it was terminated for its “failure to cure.” The County subsequently permitted IFIC to finish the project with yet another contractor. The project was accepted by the County as complete on January 24,1997. On September 14, 1995, shortly before substantial completion and just after the passage of the extended completion date, the County served IFIC with a “Notice of Claim” for alleged delay damages, dating from the time of NANCO’s initial default, totaling over four million dollars. The Notice of Claim stated that the County intended to submit the matter to its project architect, SWCF Architects Engineers Planners (“SWCF” or “Project Architect”), for resolution. IFIC notified the County that it opposed the proposed submission, asserting that such a claim was not properly submissible to the Project Architect, but rather should be resolved in a court of law. The County took no further action in regard to the claim until April 1, 1997, when, after final completion of the project, the County served IFIC with a more detailed analysis of the claim and forwarded the matter to SWCF for resolution. In response, on May 21, 1997, IFIC brought this proceeding, seeking, inter alia, not only (1) compensatory damages against the County for monies alleged to be due to IFIC under the Takeover Agreement, but also (2) a request for a declaratory judgment that the claims resolution procedure set forth in the original Construction Contract — allowing certain disputes to be submitted to the Project Architect for resolution — was inapplicable to this dispute, and that therefore the County could not submit its damage claim to the project architect. On June 23, 1997, the County filed its answer, as well as its counterclaims against IFIC for delay damages. IFIC, supported by defendant F & G, then moved for summary judgment on its claim for a declaratory judgment.preventing the County from submitting the delay damage dispute to the Project Architect. On May 24, 1999, this Court, in a decision by the Honorable Colleen McMahon, granted IFIC’s motion, declaring that the Project Architect claims resolution procedure does not apply to this dispute, and permanently enjoining any proceeding before SWCF. In September of 1999, IFIC and F & G submitted the current summary judgment motions to the Court. On October 20, 1999, pursuant to the provisions of 28 U.S.C. § 636(c), the parties consented to conduct all proceedings in this case before me. DISCUSSION I. Time Limits on the County’s Claims Against IFIC. IFIC first asserts (with the concurrence of F & G) that the counterclaims for delay damages brought against IFIC by the County in this action are time-barred. It bases this assertion on the time-limitation provision in ¶ 9 of the Performance Bond, which states: Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction ... and shall be instituted within two years after Contractor Default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond, whichever occurs first. IFIC Bond at ¶ 9. For the reasons set forth below, I conclude that the County’s claim for delay damages resulting from NANCO’s delay is an action under the Bond, and is barred by the time limit in ¶ 9 of the Bond, except to the extent that such damages are an offset against damages awarded for IFIC^s claims against the County. I further conclude that the County’s claim for delay damages resulting from IFIC’s delayed performance is not a proceeding under the Bond, and is therefore not time-barred. Under New' York law, which the parties do not dispute applies to this action, parties to a contract are permitted to designate a limitations period shorter than the statutory period for filing actions based upon a contractual obligation. See N.Y. CPLR § 201. However, such an agreement must be in writing, and the shorter period selected must be reasonable. Sapinkopf v. Cunard S.S. Co., 254 N.Y. 111, 172 N.E. 259, cert. denied, 282 U.S. 879, 51 S.Ct. 83, 75 L.Ed. 776 (1930). In addition, contracts of this sort are viewed with caution by the courts, and are construed strictly against the party invoking the shorter period. Hauer Constr. Co. v. City of New York, 193 Misc. 747, 85 N.Y.S.2d 42 (1948), aff'd, 276 A.D. 841, 93 N.Y.S.2d 915 (1st Dep’t 1949). See also Comey v. United Surety Co., 217 N.Y. 268, 277, 111 N.E. 832 (1916) (words of doubtful meaning, prescribing a limitation of action, in a surety’s performance bond must be construed in favor of the obligee); Menorah Nursing Home, Inc. v. Zukov, 153 A.D.2d 13, 20, 548 N.Y.S.2d 702 (2d Dep’t 1989) (under New York law, contractual time limitations contained in a surety’s performance bonds are to be strictly construed against the surety (citing Comey)). Therefore, if the limitations period in the Bond does apply to this action, any ambiguities in its language must be construed in the County’s favor; and if the interpretation ascribed to the provision (particularly by the surety invoking the shorter period) is not reasonable, the limitation may not stand. The essence of IFIC’s time-limitation argument is that the word “Contractor” in this limitation clause refers only to NANCO; that NANCO’s default (and cessation of work) occurred on August 4, 1994; and therefore that any action brought under the IFIC Bond — no matter which underlying contract was allegedly breached, which party allegedly breached it, or when that breach occurred — must be instituted within two years of the date of NANCO’s default (that is, by August 4, 1996), or it is time-barred. IFIC argues that because the counterclaims by the County in this action were not filed until June 23, 1997, those claims are time-barred in their entirety. The County, on the other hand, asserts two different grounds for its conclusion that its claim is not time-barred. First, it argues that when IFIC stepped into NAN-CO’s shoes after NANCO’S default — by undertaking to perform and complete the Construction Contract itself, and by executing the Takeover Agreement to implement that course of action — IFIC became the “Contractor” for purposes of ¶ 9 of the Bond (the limitations provision). Thus, the County argues, to the extent that the limitations period in the Bond applies to this action at all, that limitations provision should be read to say that any proceeding, no matter which party’s breach it may be based on, “shall be instituted within two years after [IFIC’s] Default.” Consequently, the County asserts, it had two years from the date of IFIC’s default (which was certified by the Project Architect on February 28, 1996), or until February 28, 1998, to institute any action under the Bond, making its counterclaim timely. The County’s second argument is that it is not suing IFIC “under the Bond” at all, but rather is suing it for its breach of the Takeover Agreement and the underlying Construction Contract. Thus, the County asserts, the limitations provision in the Bond, which applies only to “[a]ny proceeding, legal or equitable, under this Bond” (emphasis added), does not apply at all; rather, the County argues that it is the six-year statutory limitations period applicable to contract-based actions that should apply, since neither the Takeover Agreement nor the Contract contains any provision for shortening the statutory limitations period. Actually, the Contract, which is incorporated by reference into the Takeover Agreement, does contain a provision for shortening the statutory limitations period. However, the threshold question in regard to this issue is whether this action is brought “under the Bond,” and thus which limitations provision should apply. A. Threshold Question: Do the County’s Counterclaims Constitute a “proceeding under this Bond”? The answer to this question hinges on a question of fact that is not clearly answered in any of the parties’ submissions: namely, whether the County’s claim for monetary damages against IFIC is a single unified claim, or if it is actually a composite claim for several different kinds of damages. The County demands compensation for lost profits, extra interest incurred, and lost depreciation reimbursément due to the delay in completion of the project, as well as prejudgment interest thereon. (See Complaint ¶¶ 65-72.) All of these damages are alleged by the County to be the result of the delay in their ability to move into the building and to begin servicing patients. However,. a comparison of the damage allegations with the chronology of events listed above reveals that while some of the delay asserted by the County is presumptively attributable to NANCO’s delayed performance and ultimate default, the later portion of the delay is more accurately attributable to Hirani’s delayed performance, and therefore, derivately, to the delayed performance of IFIC. Such a distinction may have consequences for IFIC’s liability under the specific language of this Bond. While IFIC is obligated, under the Bond, to pay for certain kinds of damages whether those damages were caused by NANCO or IFIC, IFIC’s obligation is more limited in regard to other kinds of damages. In regard to the latter categories of damages, IFIC’s obligation under the Bond exists only if the damages were caused by NAN-CO, and' not if they were caused by IFIC. Thus, a claim for these last categories of damages, to the extent that the damages were caused by IFIC, could not be brought under this Bond, although the claim might be brought under a separate obligation, such as the Takeover Agreement. A review of the language of the Bond, which is the American Institute of Architect’s standard “AIA Document A312” Performance Bond dated December 1984, makes this distinction clear. B. IFIC’s Obligations Under the Bond. As noted above, there is no dispute between the parties that after NANCO’s default, IFIC undertook to act under Sub-paragraph 4.2 of the Bond, which allows the Surety to “Undertake to perform and complete the construction Contract itself, through its agents or through independent contractors.” The responsibilities and monetary obligations of a Surety whose principal has failed to perform its Con-, struction Contract are delineated in ¶ 6 of the Bond, which states: 6. After the Owner has terminated the Contractor’s right to complete the Construction Contract, and if the Surety elects to act under Subparagraph 4.1, 4.2, or 4.3 above, then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. To the limit of the amount of this Bond, but subject to commitment by the Owner of the Balance of the Contract Price to mitigation of costs and damages on the Construction Contract, the Surety is obligated without duplication for: 6.1 The responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; 6.2 Additional legal, design professional and delay costs resulting from the Contractor’s Default, and resulting from the actions or failure to act of the Surety under Paragraph 4; and 6.3 Liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual damages caused by delayed performance or non-performance of the Contractor. Bond at ¶ 6. The wording of Paragraph 6 of the Bond distinguishes between several different categories of potential damages in the sub-paragraphs. The Bond distinguishes between, on the one hand, those damages “resulting from” (¶ 6.2) or “caused by” (¶ 6.3) the actions or omissions of the Contractor, and, on the other hand, those resulting from the actions or omissions of the Surety (¶ 6.2). In addition, it addresses three different kinds of damages: those directly related to correcting and completing the Construction Contract (in ¶ 6.1); a variety of additional “costs” that might result from the Contractor’s Default or from the Surety’s actions or omissions under Paragraph 4 (in ¶ 6.2); and “liquidated damages, or ... actual damages caused by delayed performance or non-performance” (in ¶ 6.3). Finally, the Bond assigns liability differently for different categories of damages. In ¶ 6.2, the Bond obligates the Surety for the payment of “legal, design professional and delay costs” resulting both from the Contractor’s Default and from “the actions or failure to act of the Surety under Paragraph 4.” Id. (emphasis added). However, in ¶ 6.3, the Surety is obligated only for “Liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual damages caused by delayed performance or non-performance of the Contractor.” Id. (emphasis added). That is the end of the sentence; the Bond specifically does not obligate the Surety for payment of those liquidated or actual damages caused by its mm delayed performance or non-performance under Paragraph 4, even though the sub-paragraph immediately before it specifically does obligate the Surety for payment of the specified “costs” when such costs are caused by its own actions or omissions. The contrast between ¶ 6.2 and ¶ 6.3 cannot be ignored. See Taracorp, Inc. v. NL Industries, Inc., 73 F.3d 738, 744-745 (7th Cir.1996) (“we assume that the same words have the same meaning ... and that the choice of substantially different words to address analogous issues signifies a different approach.... This approach also accords with the basic contract principle that the meaning of separate contract provisions should be considered in light of one another and the context of the entire agreement”) (citing BFP v. Resolution Trust Corp., 511 U.S. 531, 537, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994) (expressing the corresponding statutory presumption that Congress acts intentionally when particular language is included in one section of a statute but omitted in another)). The fact that this Bond is a standard American Institute of Architects (“ALA”) document is relevant to its interpretation. As New York’s Fourth Department noted in Whitacre Construction Specialties, Inc. v. Aetna Casualty & Surety Co., 86 A.D.2d 972, 448 N.Y.S.2d 287 (4th Dep’t), aff'd, 57 N.Y.2d 1018, 457 N.Y.S.2d 479, 443 N.E.2d 953 (1982), the AIA forms “were carefully drafted and the terms used were meant to have a consistent meaning throughout the documents.” Sophisticated lawyers, such as those drafting standard forms to be used by the construction industry, must be presumed to know how to use parallel construction and identical wording to impart identical meaning when they intend to do so, and how to use different words and construction to establish distinctions in meaning. They must also be presumed to be familiar with standard maxims of contract construction, including the maxim ex- pressio unium est exclusio alterius (the expression of one thing is the exclusion of another). Thus, the drafters must have acted intentionally when they divided these damages into two different subpara-graphs, used different words and sentence structures to describe them, and obligated the Surety to pay for the specified “additional ... costs” resulting from both the Contractors and the Surety’s actions in ¶ 6.2, but obligated it to pay only for those liquidated or actual damages that were “caused by delayed performance or nonperformance of the Contractor ” in ¶ 6.3. By means of the clear distinction in treatment accorded to “liquidated ... or ... actual damages caused by delayed performance” in ¶ 6.3, the Bond on its face makes it explicitly clear that such damages constitute a separate category of damages; the Bond also distinguishes between the existence of the Surety’s obligation under the Bond for “additional legal, design professional delay costs” resulting from its own actions or omissions under Paragraph 4, and the absence of any obligation to pay liquidated or actual damages caused by its own “delayed performance.” The distinctions apparent in the Bond are supported by the case law and by treatises on construction and surety law. See, for example, 2 Steven G.M. Stein, Construction Law (“Stein”), Chapters 6 & 11 (Supp.Rel.32, 6/98), which provides an overview of damage categories in construction litigation. In a general discussion of damages available after termination of a contract, for example, Stein says: The measure of the owner’s damages following termination are the same whether the basis for termination is the contractor’s delay or failure to prosecute the work or some other reason. Those damages are the excess completion costs, ... [which] are the cost of completing the work with a replacement contractor or the owner’s own forces minus any unpaid balance under the terminated contract. Additionally the owner can recover any incidental damages actually sustained as a result of the terminating [sic], together with delay damages sustained prior to termination' and for a reasonable period required for completion beyond the termination date. Id., ¶ 6.10[6] (citations omitted). Stein explains that the excess cost of completion of the contract — that is, the amount in excess of the contract price that it costs to complete the construction in accordance with the original contract plans and specifications — is the standard measure of direct damages recoverable by the owner for the contractor’s non-performance, partial performance (failure to complete) or defective performance. Id., ¶¶ 11.02[2][a], 11.02[3][b], 11.01[3][d]; see also 36 N.Y. Jur.2d Damages § 49 (upon breach by the contractor, “[t]he cost of completion or correction ordinarily affords the proper measure of damages.... The owner may recover any cost in excess of the contract price to which he [or she] may be put in order to have the work finished” (citations omitted)); Trainor Co. v. Aetna Casualty & Surety Co., 290 U.S. 47, 54, 54 S.Ct. 1, 78 L.Ed. 162 (1933) (citing, inter alia, Kidd v. McCormick, 83 N.Y. 391 (1881) for the proposition that “The measure of damage on a bond guaranteeing completion is the cost of completion,” and adding, “it seems to us that the... decisions, ... cited above, are plainly right”). Such damages correspond to those under ¶ 6.1 of the Bond, “[t]he responsibilities of the Contractor for correction of defective work and completion of the Construction Contract,” which are “subject to the commitment by the Owner of the Balance of the Contract Price.” Bond at ¶ 6. Consequential damages, which would not necessarily arise in all similar circumstances but may have arisen in the case of the particular plaintiff, may also be awarded, although they are subject to the higher burden of proof that they were reasonably foreseeable at the time of contracting and were within the contemplation of the parties at that time. Stein, ¶ 11.02[2][a] (citing 11 Williston, A Treatise on the Law of Contracts, § 1636 (3d ed. 1961 & Supp.1989); Dan B. Dobbs, Handbook on the Law of Remedies (“Dobbs”) § 12.3 (1973)); McKegney v. Illinois Surety Co., 180 A.D. 507, 509, 167 N.Y.S. 843 (1st Dep’t 1917) (“The plaintiff is entitled to that compensation which will leave him [or her] as well off as he [or she] would have been if the contract had been fully performed. This includes, not only the cost of completion, but also any special loss” by reason of defective performance, abandonment, delay, etc.); Kidd, 83 N.Y. 391; 36 N.Y. Jur.2d § 49. While the specific characterization of damages as consequential rather than direct may vary from one jurisdiction to another, Stein, ¶ 11.02[2][a] (citing cases), it is generally the case that certain additional “incidental” costs may be incurred by an owner due to a contractor’s breach of the construction agreement. See, e.g., Kinney v. Massachusetts Bonding & Ins. Co., 210 A.D. 285, 293, 206 N.Y.S. 163 (3d Dep’t 1924) (allowing plaintiff to recover additional sums paid to architects to supervise the completing contractor, sums paid for legal services related to the contractor’s default, and sums paid to procure a bond for the faithful performance of the completion contract); Elmira v. Larry Walter, Inc., 150 A.D.2d 129, 546 N.Y.S.2d 183 (3d Dep’t 1989) (allowing plaintiff to recover additional engineering and legal costs incurred to rebid the contract as result of contractor’s breach), aff'd, 76 N.Y.2d 912, 563 N.Y.S.2d 45, 564 N.E.2d 655 (1990); Kidd, 83 N.Y. 391 (noting that “the cost of actual budding may have increased after the day of performance, and so be a detrimental gauge of damage for the defaulting contractor”); 36 N.Y. Jur.2d § 49. These additional costs and expenditures, which the owner must pay to complete the construction of the building, clearly correspond to the category of damages addressed by ¶ 6.2 of the Bond, which obligates the Surety for “additional legal, design professional and delay costs resulting from the Contractor’s Default”. That subparagraph, as noted above, also obligates the Surety to pay for such costs “resulting from the actions or failure to act of the Surety under Paragraph 4”. However, “actual damages caused by delayed performance” of the Contractor— the damages addressed in ¶6.3 of the Bond — constitute a different category of damages, and are calculated in a different manner. Essentially, they reflect not the additional incidental expenses required to complete the project, but rather the value of the “loss of use” of the structure, or loss of revenue, that the owner or the owner’s business suffers as a result of delay in the completion of the structure. Inexcusable delay may arise in conjunction with the contractor’s incomplete or defective performance, or a contractor may complete the performance of his [or her] contract without defect except for the failure to complete the work within the specified time period. Where the contractor inexcusably delays the completion of the construction project beyond the agreed upon completion date, the owner’s direct damages, attributable to the delay, can be measured in one of two ways: 1. the rental value of the completed structure for the period of the delay; or 2. the reasonable return on the completed structure (treated as an investment) for the period of the delay. Construction Law, ¶ 11.02[3][e][i], Owner’s' Damages for Inexcusable Delay by the Contractor — Direct Damages (emphasis added) (citing, inter alia, Dobbs, § 12.21 (1973)); see also Roanoke Hosp. Ass’n v. Doyle & Russell, Inc., 215 Va. 796, 802 n. 6, 214 S.E.2d 155 (1975). In New York, The measure of damages recoverable from a contractor who inexcusably delays in performance of his [or her] contract, or who breaches his [or her] contract with resulting delay in completion of the building to which his [or her] contract relates, is the value of the use of the building in completed form during the period the owner is thus deprived of it.... The damages in such cases are usually regarded as amounting to the reasonable rental value of the completed building for the period in question. 36 N.Y. Jur 2d, Damages, § 52 — Delay in Performance (citing, inter alia, Ruff v. Rinaldo, 55 N.Y. 664 (1873)) (measure of damages for breach by contractor of stipulation as to the time of performance, where contractor has been allowed to go on and complete the contract, is the value of the use of the building for the period during which the owner is deprived of the use in consequence of the delay); Losei Realty Corp. v. New York, 254 N.Y. 41, 47-50, 171 N.E. 899 (1930) (landowner could recover, as damages resulting from city’s delay in filling in property, loss in rental value resulting from the period of delay reasonably attributable to city). In Miami Heart Institute, Inc. v. Heery Architects and Engineers, Inc., 765 F.Supp. 1083 (S.D.Fla.1991), aff'd, 44 F.3d 1007 (11th Cir.1994), the Florida District Court elaborated upon “the measure for loss of use from delay” when .computing the damages due to a hospital that was delayed in occupying its new building because of the acts and omissions of the contractor. Id. at 1084. The court explained, When the owner loses the use of a structure because of delay in its completion, he [or she] is entitled [in addition to the out-of-pocket expenses incurred] to damages measured by the reasonable rental value of the structure during the period of delay. “During this period the owner is being deprived of the use of property, and rental value is used as a practical and a reasonably accurate measure of just compensation.” 5 Corbin on Contracts § 1092. The rental value of the improvement during the period of delay, rather than the actual expense incurred in renting a substitute during the delay period, is the proper measure for delay damages.... Rental valúe as the measure for loss of use “does not at all depend upon the fact that the owner expected to rent the property after its completion or upon the> fact that prospective hirers or tenants could have been found.” 5 Corbin on Contracts § 1092; Restatement of Contracts § 346(l)(b), comment c (Rental value is the ordinary measure for loss of use from delay “even though the use expected to be made ... was not the rent of it to others and even though some other use of it might have resulted in a different return.”) “It is enough that the property is of such a character that its rental valuation, that is, the market value of its use, can be established with reasonable certainty by expert testimony.” 5 Corbin on Contracts § 1092. Miami Heart, 765 F.Supp. at 1085 (internal footnote added). Included in this category of delay damages are the additional interest costs incurred by the owner due to delay, which may be recovered as direct or consequential damages, depending on the jurisdiction and the nature of the interest costs. For example, the additional interest costs attributable to the cost of extending the interim construction loan, at the same interest rate, over an additional number of months which resulted from delay, have been held to be direct damages, while the costs incurred due to interest rate increases applicable to the interim or permanent construction loan resulting from the delay may be considered consequential damages subject to proof of foreseeability. See Roanoke Hosp., 215 Va. 796, 214 S.E.2d 155; Hemenway Co. v. Bartex, Inc., 373 So.2d 1356 (La.Ct.App.), cert. denied, 376 So.2d 1272 (La.1979); United Telecommunications, Inc. v. American Television & Communications Corp., 536 F.2d 1310 (10th Cir.1976); Young v. Johnston, 475 So.2d 1309 (Fla.Dist.Ct.App.1985); Construction Law, ¶¶ 11.02[2][a], 11.02[3][e], 11.02[6][c]. Subject to the proof requirements of consequential damages, claims for lost profits due to delay may also be recovered as delay damages, and in fact are “entirely permissible as an alternative to the rental value measure” of delay damages, Dobbs, § 12.21 (1973), particularly in the case of established businesses. Stein, ¶ 11.02[3][e] (citing cases); see also Kenford Co. v. County of Erie, 67 N.Y.2d 257, 260, 502 N.Y.S.2d 131, 493 N.E.2d 234 (1986) (if a new business is seeking to recover for loss of future profits, a stricter standard is imposed because there does not exist a reasonable basis of experience upon which to estimate lost profits); Louis N. Picciano & Son v. Olympic Constr. Co., 112 A.D.2d 604, 492 N.Y.S.2d 476 (3d Dep’t 1985). Subject to the proof requirements of consequential damages, depreciation costs may also be recoverable. Oliver B. Cannon & Son v. Dorr-Oliver, Inc., 394 A.2d 1160 (Del.1978). Because the County’s counterclaims in this action are limited to claims for loss of revenue, lost depreciation reimbursement, and additional interest incurred due to the delay in completion of the building, the claimed damages all constitute “damages caused by delayed performance,” Bond at ¶ 6.3, as such damages are understood in the construction industry and under construction law. Therefore, to the extent that they are “caused by delayed performance ... of the Contractor”, such damages fall within the language of ¶ 6.3 of the Bond, and the Surety is obligated under the Bond for their payment. However, to the extent that such delay damages are caused by the actions of the Surety, they do not fall within the language, and therefore within the coverage, of the Bond. There is no doubt that a surety may, through the language of its bond, strictly delineate the categories of damages for which it is responsible under the bond. Bank of Italy v. Merchants’ Nat'l Bank, 236 N.Y. 106, 140 N.E. 211 (1923) (obligation for “dried grapes” does not apply to “raisins”), cert. denied, 264 U.S. 581, 44 S.Ct. 331, 68 L.Ed. 860 (1924); American Trading Co., Inc. v. Fish, 42 N.Y.2d 20, 26, 396 N.Y.S.2d 617, 364 N.E.2d 1309 (1977); Richardson v. Steuben County, 226 N.Y. 13, 19-20, 122 N.E. 449 (1919); Argyle v. Plunkett, 226 N.Y. 306, 310, 124 N.E. 1 (1919); Border v. Frank G. Cook & Sons, 240 A.D. 476, 270 N.Y.S. 229 (4th Dep’t 1934). See also United States v. American Surety Co., 322 U.S. 96, 64 S.Ct. 866, 88 L.Ed. 1158 (1944) (limiting surety’s liability for liquidated damages to precise limitations specified in contract). Courts have recognized distinctions between a surety’s liability for delay damages and the surety’s liability for excess construction costs as an appropriate limitation on damages under a bond. Similarly, distinctions have been accepted between delay damage liability for the contractor’s actions and those of the surety. For example, in American Home Assurance Co. v. Larkin General Hospital, Ltd., 593 So.2d 195 (1992), the Supreme Court of Florida determined that a surety cannot be held liable for delay damages due to the contractor’s default, unless the bond specifically provides coverage for delay damages, id. at 196, which the bond in that case did not. The court added, “Our holding is limited to circumstances in which an owner sues a surety for delay damages due to a contractor’s default. Whether an owner can recover consequential delay damages for a surety’s failure to fulfill its obligations as set forth in a performance bond is not an issue before this Court.” Id. at n. 2 (emphasis added). Compare Cates Construction, Inc. v. Talbot Partners, 21 Cal.4th 28, 86 Cal.Rptr.2d 855, 980 P.2d 407 (1999), in which the Supreme Court of California disagreed with Larkin and decided, based on similar if not identical language, that under California law the bond and construction contract, construed together, did create contractual liability on the part of the surety for damages attributable to its principal’s delay. Id. at 863, 980 P.2d 407. The court then added, “In light of our conclusion that [the surety] may be held liable for [the contractor’s] delay, we need not decide whether the award of damages may be upheld on the alternative ground that [the surety’s] breaches of the performance bond caused the damages at issue.” Id. at 864, 980 P.2d 407. Two Appellate Division cases from New York’s Fourth Department address the question of a surety’s liability for “loss of use” damages caused by its own actions or inactions. However, upon thorough review of those cases I conclude that they are not dispositive of New York law on this issue, as such law would be determined by the New York Court of Appeals. A federal court sitting in diversity must follow the law directed by the highest court of the state whose law is applicable to the resolution of the dispute. Plummer v. Lederle Laboratories, 819 F.2d 349, 355 (2d Cir.), cert. denied, 484 U.S. 898, 108 S.Ct. 232, 98 L.Ed.2d 191 (1987). When the highest state court has not ruled directly on the issue presented, a federal court must make its best estimate as to how the state’s highest court would rule in the case. Francis v. INA Life Ins. Co. of New York, 809 F.2d 183, 185 (2d Cir.1987). In making that determination, the federal court is free to consider all the resources the highest court of the state could use. Id. “ ‘A federal court may discern the forum state’s law by examining relevant decisions from a forum state’s inferior courts, decisions from sister states, federal decisions and the general weight and trend of authority.’ ” Allstate Ins. Co. v. American Transit Ins. Co., 977 F.Supp. 197, 200 (E.D.N.Y.1997) (quoting Continental Casualty Co. v. Pullman, Comley, Bradley & Reeves, 709 F.Supp. 44, 46 (D.Conn.1989)), aff'd, 929 F.2d 103 (2d Cir.1991). Because the Bond in this case is a standard form document intended to be used throughout the country, I presume that the New York Court of Appeals would be particularly likely to consider the general trend of authority outside New York state, as well as within it, in regard to issues of interpretation. Therefore, it is my “best estimate” that lower court decisions that do not reflect, analyze, or at least distinguish the line of authority outside New York would not necessarily reflect the position of the Court of Appeals. Nevertheless, I briefly review those New York lower court cases here. In Hunt v. Bankers and Shippers Ins. Co. of New York, 73 A.D.2d 797, 423 N.Y.S.2d 718 (4th Dep’t 1979) (“Hunt I”), a surety provided two performance bonds for its principal (on two construction projects), and also executed an agreement to complete the construction projects after the principal defaulted. The surety then apparently refused to fulfill the completion agreement. The Hunt I court stated without addressing the language of the performance bonds or the completion agreement — that “Had [the surety] performed its obligation, it would not have been liable for damages beyond its duty to complete or pay for the completion of the construction. Since it did not perform, however, [the surety] is hable for those damages which flow reasonably and naturally from the contractor’s breach as well as its own.” Id. at 798, 423 N.Y.S.2d 718 (emphasis added). The court then held the surety liable for damages equal to the loss of value caused by the sale of the buildings in their uncompleted, as opposed to completed, condition. Even if this language accurately stated New York law, it is questionable whether it would support an award of comparable damages to a surety that had, as IFIC did, performed by completing the project, albeit in a delayed fashion. However, the analysis and conclusions of the Hunt I court are not dispositive for several other reasons, not the least of which is that the Court of Appeals did not affirm the decision on its merits. Although the case was affirmed by the Court of Appeals, Hunt v. Bankers and Shippers Ins. Co. of N.Y., 50 N.Y.2d 938, 431 N.Y.S.2d 454, 409 N.E.2d 928 (1980) (“Hunt II”), that affirmance was on procedural grounds. The Court of Appeals wrote: We are constrained to affirm the order of the Appellate Division.... It is appellant’s contention that no consequential damages should have been awarded. In returning substantial verdicts for plaintiff it may be that the jury considered legally impermissible elements of such damages when it determined the total amount of damages. In the procedural posture in which the case reaches us it is impossible to determine whether the jury did in fact consider any such elements.... The jury returned lump sum general verdicts only on the four causes of action alleged in the complaint; no request was made for special verdicts or answers to written interrogatories .... Appellant has failed to preserve for our review the law issues which it asserts underlie the factual determinations of which it now complains. The instructions given the jury ... are not a model of either clarity or completeness. However, ... defendant took no sufficient exception to the charge as given and did not otherwise assist the Trial Judge in clarifying or distilling the legal issues as to which it now seeks our review. In consequence ..., appellant has failed to preserve legal issues which we may consider. Hunt II, 50 N.Y.2d at 940, 431 N.Y.S.2d 454, 409 N.E.2d 928. A review of the Hunt I court’s- analysis of damage categories further reveals its inapplicability to the case at bar. For example, the damages ultimately awarded against the surety were damages for the “reduc[tion of] the sale price because of the failure of defendant to complete the construction.” Hunt I, 73 A.D.2d at 798, 423 N.Y.S.2d 718. In justifying this award, the court concluded that an award of “loss of use” damages would have been appropriate against the surety, and allowed an award of loss-of-sale-value damages only because such damages amounted to less than the sum that would have been attributable to loss of rent. However, damages for “reduction of the sale price,” rather than being a variation on delay damages, actually constitute the accepted alternative measure for computing standard “cost of completion damages” — that is, the “value” rather than “cost” method of computation, which substitutes (for the cost of completion) the difference between the value of the incomplete structure and the value the structure would have had if it had been completed in accordance with the original plans. Therefore, any discussion by the Hunt I court of “loss of use” damages for surety-caused delay is at best dictum, since the actual damages under consideration were cost-of-completion damages, and would have been appropriate without any reliance at all on the concept of loss of use damages. Moreover, the Hunt I court neglected to differentiate between the various claims brought in the trial court on which the awards in this case were based — that is, between claims based on the performance bonds, and separate causes of action based on the letter of agreement wherein the surety agreed to complete the construction projects. The Appellate Division had earlier, in Hunt v. Bankers and Shippers Ins. Co. of New York, 60 A.D.2d 781, 783, 400 N.Y.S.2d 645 (4th Dep’t 1977) (“Hunt III”), allowed the plaintiffs to plead and prove causes of action on the performance bonds as well as on the agreement letter, but then required them to make a selection between the claims before the entry of judgment. Apparently judgment was ultimately entered on the performance bond claims only. Hunt I at 797, 423 N.Y.S.2d 718. However, no distinction was made by the court as to which kind of damages might be appropriate for each of the separate actions — those for breach of the performance bonds, and those for breach of the letter agreement. In light of the Appellate Division’s failure to consider the language of the bond and to identify and distinguish the nature of the damages at issue, the failure of the Court of Appeals to review and consider the substantive conclusions of the appellate court, and the distinguishable fact pattern, I do not find the conclusions of the Hunt I case to be binding on the case at bar. The other Fourth Department case to address the issue of a surety’s liability, under a bond, for surety-caused delay damages is International Fidelity Ins. Co. v. County of Chautauqua, 245 A.D.2d 1056, 667 N.Y.S.2d 172 (4th Dep’t 1997), which is directly on point. In Chautau qua, as in the case at bar, the county terminated the principal’s right to complete the construction contract and demanded that the surety complete the work pursuant to the performance bond. The surety then retained another contractor, which completed the work a year and a half after the deadline established by the original contract. The court concluded that