Horwitz v. American Druggists' Insurance

112 A.D.2d 192, 491 N.Y.S.2d 416, 1985 N.Y. App. Div. LEXIS 55942

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 8, 1985
• Status: Published

Opinion

In an action to recover $2,526.42 on a labor and material payment bond underwritten by defendant as surety, defendant appeals from an order of the Supreme Court, Dutchess County (Cholakis, J.), dated September 28, 1984, which denied defendant’s motion pursuant to CPLR 3212 to dismiss the action on the ground that, pursuant to State Finance Law § 137, the action was untimely commenced.

Order affirmed, without costs or disbursements.

Plaintiff, a subcontractor, obtained a default judgment against his contractor for a balance due for the installation of floor coverings in a State-owned facility. Plaintiff now seeks to recover the unsatisfied judgment from defendant as surety pursuant to a payment bond executed by defendant and the contractor. The payment bond provided that it was enforceable pursuant to State Finance Law § 137 (4) (b) which states that "[n]o action on a payment bond furnished pursuant to this section shall be commenced after the expiration of one year from the date on which final payment under the claimant’s subcontract became due”. Since the determinative date on which final payment from the contractor became due to plaintiff cannot be determined from' the record, a factual dispute exists which justified Special Term’s denial of defendant’s motion. The question of whether this action was untimely commenced must therefore await determination after trial. Lazer, J. P., Gibbons, Weinstein and Lawrence, JJ., concur.