Building Mgt. Co., Inc. v Fidelity & Deposit Co. of Md.

[*1] Building Mgt. Co., Inc. v Fidelity & Deposit Co. of Md. 2005 NYSlipOp 50493(U) Decided on April 7, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 7, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. LUCINDO SUAREZ, P.J.
HON. WILLIAM P. McCOOE
HON. WILLIAM J. DAVIS, Justices.
570898/03

BUILDING MANAGEMENT CO., INC., d/b/a WEMBLY MANAGEMENT CO. Plaintiff-Respondent,

against

FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Defendant-Appellant.

Defendant appeals 1) from a judgment of the Civil Court, New York County, entered November 29, 2002 (Eileen N. Nadelson, J.) in favor of plaintiff in the principal sum of $1,649.97, upon an order of the same court and Judge entered October 21, 2002 which granted plaintiff's motion for summary judgment, and 2) from an order of the same court and Judge entered April 23, 2003 which denied its motion to renew the underlying motion.

PER CURIAM:

Judgment entered November 29, 2002 (Eileen N. Nadelson, J.) and order entered April 23, 2003 (Eileen N. Nadelson, J.) affirmed, with $25 costs.

Plaintiff made out a prima facie case under CPLR 3213 for recovery of the interest expressly provided for in the appeal bond (see Bankers Trust Co. v National Union Fire Ins. Co. of Pittsburgh, Pa., 261 AD2d 286 [1999]) and the defendant surety failed to raise an issue of fact with respect to its claimed defenses. Any delay occasioned by the severance of the attorneys' fee counterclaim interposed in the underlying litigation by the principal under the bond (Antollino) did not serve to relieve defendant of the payment obligations that it unreservedly assented to as surety (id.).

This constitutes the decision and order of the court.
Decision Date: April 07, 2005