Forbes v American Safety Cas. Ins. Co.

Forbes v American Safety Cas. Ins. Co. 2018 NY Slip Op 02773 Decided on April 25, 2018 Appellate Division, Second 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 April 25, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
ROBERT J. MILLER
BETSY BARROS
LINDA CHRISTOPHER, JJ.
2015-07031
(Index No. 703222/14)

[*1]Autry D. Forbes, respondent,

v

American Safety Casualty Insurance Company, appellant, et al., defendants.

Westermann Sheehy Keenan Samaan & Aydelott, LLP, Uniondale, NY (Robert J. Fryman and Christopher J. Sheehy of counsel), for appellant.

Forchelli, Curto, Deegan, Schwartz, Mineo & Terrana, LLP, Uniondale, NY (Peter L. Agovino and Raymond A. Castronovo of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover upon a performance bond, the defendant American Safety Casualty Insurance Company appeals from an order of the Supreme Court, Queens County (Duane A. Hart, J.), entered April 13, 2015, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

In 2012, the plaintiff hired the defendant Earth Link General Construction, Inc. (hereinafter Earth Link), as a general contractor for a home construction and renovation project. In connection with the project, Earth Link obtained a performance bond and a payment bond from the defendant American Safety Casualty Insurance Company (hereinafter ASCI).

The plaintiff commenced this action against Earth Link, ASCI, and others. The plaintiff alleged that Earth Link breached the construction contract by, inter alia, performing work in a deficient manner. As against ASCI, the plaintiff sought to recover on the performance bond. In an order entered April 13, 2015, the Supreme Court denied ASCI's motion for summary judgment dismissing the complaint insofar as asserted against it. ASCI appeals.

ASCI was not entitled to summary judgment dismissing the complaint insofar as asserted against it, as it failed to establish, prima facie, that any of the conditions precedent set forth in the performance bond were not satisfied by the plaintiff (see Klewin Bldg. Co., Inc. v Heritage Plumbing & Heating, Inc., 42 AD3d 559, 560; see also Walter Concrete Constr. Corp. v Lederle Labs., 99 NY2d 603, 605). Since ASCI failed to meet its prima facie burden, the Supreme Court properly denied ASCI's motion without regard to the sufficiency of the plaintiff's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).

DILLON, J.P., MILLER, BARROS and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court