Finkel v Nova Cas. Co.

[*1] Finkel v Nova Cas. Co. 2009 NY Slip Op 50011(U) [22 Misc 3d 126(A)] Decided on January 7, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 7, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Heitler, J.
570906/07

Dr. Gerald Finkel, as Chairman of the Joint Industry Board of Electrical Industry, Plaintiff-Appellant, - -

against

Nova Casualty Company, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Saliann Scarpulla, J.), entered May 9, 2007, which granted defendant's motion to dismiss the complaint on the ground of a contractual period of limitations.

Per Curiam.

Order (Saliann Scarpulla, J.), entered on May 9, 2007, affirmed, without costs.

The labor and material bond executed by defendant, as surety, provided that "[n]o suit or action shall be commenced hereunder . . .[a]fter the expiration of one (1) year following the date on which Principal ceased work on said contract." Inasmuch as it is undisputed that the (nonparty) contractor and principal on the bond ceased work on the project in September 2003, we agree that this 2006 action to recover unpaid benefit contributions under the bond was untimely under the contractual period of limitations (see Rochez v Travelers Cas. & Sur. Co. Of Am., 8 AD3d 121 [2004]; A.J. McNulty & Co. v P.J. Carlin Constr. Co., 247 AD2d 254 [1998], lv denied 92 NY2d 801 [1998]). The parties' communications in September and October 2003 were insufficient to establish any waiver or estoppel (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 968 [1988]) or an enforceable separate settlement agreement (see Hover v National Grange Ins. Co., 14 NY2d 824 [1964]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concur I concur
Decision Date: January 07, 2009