Reliance Insurance Company of New York v American Bankers Insurance Company of Florida

Reliance Ins. Co. of N.Y. v American Bankers Ins. Co. of Fla. 2004 NY Slip Op 02566 [6 AD3d 419] April 5, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 30, 2004

Reliance Insurance Company of New York et al., Appellants,
v
American Bankers Insurance Company of Florida et al., Respondents, et al., Defendant.

—[*1]In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from so much of an order of the Supreme Court, Richmond County (Maltese, J.), dated December 5, 2002, as denied their cross motion for summary judgment on the amended complaint insofar as asserted against the defendants American Bankers Insurance Company of Florida and Cunardi Contracting, Inc., and their separate cross motion for summary judgment dismissing the counterclaims of the defendant Cunardi Contracting, Inc., to recover damages for breach of contract.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs.

The Supreme Court properly denied the plaintiffs' cross motion for summary [*2]judgment on the amended complaint insofar as asserted against the defendant subcontractor Cunardi Contracting, Inc., and their separate cross motion to dismiss the counterclaims asserted by the defendant subcontractor, since there are disputed issues of fact regarding the defendant subcontractor's alleged breach of the subcontract (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Carpenter's Local Union No. 964 Pension Fund v Nyack Waterfront Assoc., 226 AD2d 494, 495 [1996]; cf. Solco Plumbing Supply v S&A Contr., 260 AD2d 627 [1999]). Since the liability of a surety is predicated upon a breach of the conditions of the bond, the cross motion for summary judgment on the amended complaint insofar as asserted against the subcontractor's surety, the defendant American Bankers Insurance Company of Florida, also was properly denied (see State of New York v Peerless Ins. Co., 135 AD2d 143, 148 [1988]). Smith, J.P., Goldstein, Adams and Townes, JJ., concur.