Hartford Accident & Indemnity Co. v. City of New York

169 A.D.2d 658

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 1991
• Status: Published

Opinion

Order, Supreme Court, New York County (Leonard Cohen, J.), entered on or about February 23, 1990, which denied plaintiffs motion for partial summary judgment on its first and second causes of action of the complaint in the amount of $183,214.39, and which dismissed only the second and fifth defenses asserted by the defendant City of New York (the City), unanimously affirmed, without costs.

Plaintiff, as surety, subrogee and assignee of defendant N.A. Orlando Contracting Corp. (Orlando), seeks to recover moneys allegedly owed to defendant Orlando in connection with a construction contract pursuant to which defendant Orlando agreed to "furnish, deliver and install water mains and appurtenances” on Wallace Avenue and other locations in Bronx County.

The IAS court did not err in denying plaintiffs motion for partial summary judgment and in refusing to dismiss the first, third and fourth defenses pleaded in the City’s answer. It is undisputed that the work was never completed, certain materials belonging to the City were never returned, and the necessary papers for final payment were never submitted. Plaintiff was not entitled to the funds retained by the City until the outstanding obligations under the contract were satisfied, as completion of the work was an express condition precedent to full payment. (Federal Ins. Co. v Andersen & Co., 75 NY2d 366.)

Plaintiffs claim of bad faith on the part of the City in not declaring the contractor in default, or, in the alternative, completing the contract and charging plaintiff with the costs of completion, raises triable issues of fact which must be resolved at trial. Concur—Murphy, P. J., Milonas, Ross, Asch and Rubin, JJ.