Capstone Bus. Funding, LLC v Optimum Constr., Inc.

Capstone Bus. Funding, LLC v Optimum Constr., Inc. 2015 NY Slip Op 08969 Decided on December 8, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 8, 2015
Tom, J.P., Friedman, Saxe, Gische, JJ.
16344 652991/13 95057/14

[*1] Capstone Business Funding, LLC, Individually and as assignee of Barden Contracting Services, LLC, Plaintiff-Respondent,

v

Optimum Construction, Inc., Defendant, RLI Insurance Company, Defendant-Appellant. [And a Third-Party Action]

Dreifuss Bonacci & Parker, PC, Florham Park, NJ (David C. Dreifuss of the bar of the State of New Jersey, admitted pro hac vice, of counsel), for appellant.

Brody, O'Connor & O'Connor, New York (Scott A. Brody of counsel), for respondent.

Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered September 9, 2014, which granted plaintiff's motion for summary judgment, unanimously affirmed, with costs.

The motion court correctly found defendant surety bound by the estoppel certificate signed by its principal, as plaintiff detrimentally relied on the certificate in advancing funds to the subcontractor for whose benefit the surety's payment bond was

required (see JRK Franklin, LLC v 164 E. 87th St. LLC, 27 AD3d 392, 393 [1st Dept 2006], lv denied 7 NY3d 705 [2006]), there was no defense, such as economic duress, that would vitiate the estoppel certificate (see Philips S. Beach, LLC v ZC Specialty Ins. Co., 55 AD3d 493 [1st Dept 2008], lv denied 12 NY3d 713 [2009]), and the bond contained a provision waiving the surety's right to a discharge from its obligations based upon its principal's conduct (see Aniero Concrete Co., Inc. v New York City Constr. Auth., 1998 WL 148324, 1998 US Dist LEXIS 3938 [SD NY 1998], affd sub nom Aetna Cas. & Sur. Co. v Aniero, 404 F3d 566 [2d Cir 2005]).

We have considered appellant's other contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 8, 2015

CLERK