Ferrante Equipment Co. v. Charles Simkin & Sons, Inc.

30 A.D.2d 525, 290 N.Y.S.2d 246, 1968 N.Y. App. Div. LEXIS 3902

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 1968
• Status: Published

Opinion

Order entered December 8, 1967, denying defendants’ motion for summary judgment, unanimously reversed, on the law, with $50 costs and disbursements to appellants, and motion granted. Plaintiff as assignee, sues on a labor and material payment bond. The material and labor were supplied to a subcontractor who is not one of the moving parties. In order to sue, plaintiff’s assignor, having no contractual relationship with the general contractor, must have given written notice by registered mail of his claim within 90 days from the date on which the last of the labor or materials were supplied. No such notice was given. The substitutions for notice claimed cannot be deemed acceptable, assuming— which is not decided — that such notice may be dispensed with. Concur — Eager, J. P., Steuer, Capozzoli, McGivern and Rabin, JJ.