153 Hudson Development, LLC v. DiNunno

8 A.D.3d 77, 778 N.Y.S.2d 482, 2004 N.Y. App. Div. LEXIS 7958

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 2004
• Status: Published

Opinion

Judgments, Supreme Court, New York County (Richard B. Lowe, III, J.), entered June 24 and December 19, 2003, which dismissed the complaint as against defendants Reliance Insurance and Thomsen Construction, unanimously affirmed, with costs. Appeals from orders, same court and Justice, entered May 20 and on or about November 7, 2003, which granted those defendants’ motions for summary judgment, unanimously dismissed, without costs, as subsumed in the appeals from the judgments.

Plaintiffs failure to comply with the notice provisions of the performance bond issued by Reliance precludes it from now maintaining this action for damages against the bond’s surety. Contrary to plaintiffs contention that these notice provisions are not conditions precedent to recovery against the surety, this bond mandates that predefault notification be given to the contractor and surety by the owner (see Walter Concrete Constr. Corp. v Lederle Labs., 99 NY2d 603, 605 [2003]). Furthermore, plaintiffs failure to invoke the claim resolution mechanism in its construction contract with Thomsen bars it from seeking recovery from this entity (see Garofalo Elec. Co. v New York Univ., 270 AD2d 76, 80 [2000], lv dismissed 95 NY2d 825 [2000]).

We have considered plaintiffs other arguments and find them unavailing. Concur—Buckley, P.J., Lerner, Friedman, Marlow and Sweeny, JJ.