D & M Electrical Contracting, Inc. v. Town of North Castle

303 A.D.2d 707, 756 N.Y.S.2d 863

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 31, 2003
• Status: Published

Opinion

—In an action to recover the proceeds of a cash bond, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Bellantoni, J.), dated March 5, 2002, as denied its motion for summary judgment, and, in effect, upon searching the record, granted summary judgment to the defendant dismissing the complaint.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion is granted.

The defendant acknowledges that it is only a stakeholder, and the plaintiff is the only party before this Court with any claim to the bonded funds (see Town Law § 277 [9]). In addition, the plaintiff performed the infrastructure improvements covered by the bond. Thus, the plaintiff should have been awarded summary judgment on its complaint to recover the proceeds of the bond. However, our determination is without prejudice to claims, if any, of the owners of the four other properties within the subdivision. Ritter, J.P., S. Miller, H. Miller and Cozier, JJ., concur.