Cives Corp. v. George A. Fuller Co.

• Decision Date: 18 July 2012
• Citation: 97 A.D.3d 713,2012 N.Y. Slip Op. 05607,948 N.Y.S.2d 658
• Parties: CIVES CORPORATION, appellant, v. GEORGE A. FULLER COMPANY, INC., defendant, Liberty Mutual Insurance Company, respondent.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 713
948 N.Y.S.2d 658
2012 N.Y. Slip Op. 05607

CIVES CORPORATION, appellant,
v.
GEORGE A. FULLER COMPANY, INC., defendant,
Liberty Mutual Insurance Company, respondent.

Supreme Court, Appellate Division, Second Department, New York.

July 18, 2012.

Goldberg & Connolly, Rockville Centre, N.Y. (Mitchell B. Reiter and William J. Tinsley, Jr., of counsel), for appellant.

[948 N.Y.S.2d 659]

Wolff & Samson, P.C., New York, N.Y. (Andrew S. Kent of counsel), for respondent.

PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, ARIEL E. BELEN, and SHERI S. ROMAN, JJ.

[97 A.D.3d 713]In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Westchester County (Loehr, J.), entered April 25, 2011, which granted the motion of the defendant Liberty Mutual Insurance Company pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Liberty Mutual Insurance Company pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it is denied.

The defendant George A. Fuller Company, Inc. (hereinafter Fuller), was the general contractor on a construction project known as the Concord Hotel & Casino–Retail–Event Center–Ballroom, located in Kiamesha Lake (hereinafter the Project). The plaintiff contracted with Fuller to provide labor and materials for the Project. The defendant Liberty Mutual Insurance Company (hereinafter Liberty) allegedly issued a payment bond in connection with the Project.

After supplying labor and materials for the Project, the plaintiff submitted invoices to Fuller in the amount of $8,952,294, but Fuller allegedly failed to pay the invoices. The plaintiff then submitted a claim to Liberty for payment under the payment bond, but Liberty refused to pay the claim. The plaintiff then commenced this action, inter alia, to recover damages for Liberty's breach of its obligations under the payment bond. It attached a copy of Liberty's alleged payment bond to its summons and complaint.

Liberty moved pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it, arguing that the bond had no legal effect. It claimed that it had only released the bond to Fuller to be held in escrow subject to certain conditions in an [97 A.D.3d 714]escrow agreement, that those conditions had never been met and, thus, the bond had never been released from...