Aranoff v. International Fidelity Insurance

44 A.D.2d 807, 355 N.Y.S.2d 769, 1974 N.Y. App. Div. LEXIS 5001

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 16, 1974
• Status: Published

Opinion

Order, Supreme Court, New York County, entered November 14, 1973, granting plaintiff’s motion for summary judgment in the sum of $23,452.50, and judgment entered thereon on November 21, 1974, unanimously reversed, on the law, with $60 costs and disbursements of this appeal to abide the event, the judgment vacated, and the motion denied. Plaintiff seeks recovery of the value of certain securities delivered to his employer, Feinstein Construction Corp., for deposit with defendant surety as collateral for a performance and payment bond issued by defendant in connection with the construction, by Feinstein, of a certain restaurant. Defendant had also issued a similar bond in connection with another Feinstein contract. Although Feinstein’s transmittal letter to defendant stated that plaintiff’s securities were collateral for the restaurant contract and were to be returned to plaintiff when the bond was released, defendant’s collateral receipt provided for return of collateral only upon the termination of defendant’s liability on all bonds issued for Feinstein. Additionally, defendant contends that the condition precedent to return of the subject securities has not occurred since the aggregate amount of payments already made and claims still outstanding- on the restaurant contract exceeds the value of the collateral deposited. Under the circumstances disclosed, we find sufficient triable issues raised to defeat a motion for summary judgment. Concur—Markewich, J. P., Nunez, Murphy, Steuer and Capozzoli, JJ.