Humphreys & Harding, Inc. v. Universal Bonding Insurance Company

• Decision Date: 12 June 2008
• Docket Number: 3927.,3929.,3926.,3928.
• Citation: 2008 NY Slip Op 05374,861 N.Y.S.2d 4,52 A.D.3d 324
• Parties: HUMPHREYS & HARDING, INC., Respondent, v. UNIVERSAL BONDING INSURANCE COMPANY, Defendant and Third-Party Plaintiff-Respondent. WELCH CONSTRUCTION CORP. et al., Third-Party Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

52 A.D.3d 324

861 N.Y.S.2d 4

2008 NY Slip Op 05374

HUMPHREYS & HARDING, INC., Respondent, v. UNIVERSAL BONDING INSURANCE COMPANY, Defendant and Third-Party Plaintiff-Respondent.

WELCH CONSTRUCTION CORP. et al., Third-Party Defendants-Appellants.

3926.

3927.

3928.

3929.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided June 12, 2008.

Judgment, Supreme Court, New York County (Karla Moskowitz, J.), entered August 17, 2007, in an action by a general contractor (Humphreys) on a performance bond and a third-party action by the bonding company (Universal) against the subcontractor (Welch), in favor of Universal against Welch in the principal amount of $285,284.28, plus interest, costs and disbursements, pursuant to an order, same court and Justice, entered July 11, 2007, which, insofar as appealed from as limited by the briefs, granted Universal's motion for summary judgment declaring that Welch is liable to Universal for its losses, costs and expenses pursuant to an indemnity agreement, and severed the remainder of the third-party action, unanimously affirmed, without costs. Order, same court and Justice, entered January 25, 2007, which, insofar as appealed from as limited by the briefs, denied Welch's cross motion for summary judgment on its cross claim against Humphreys for breach of contract, unanimously affirmed, without costs. Order, same court and Justice, entered October 31, 2007, which granted Welch's motion to amend its pleadings but only to the extent of eliminating a counterclaim and adding a cross claim as against Humphreys, unanimously affirmed, without costs. Appeal from July 11, 2007 order unanimously dismissed, without costs, as subsumed in the appeal from the August 17, 2007 judgment. [See 2007 NY Slip Op 32104(U).]

Humphreys contracted with a nursing home for the renovation of its existing facility as well as the construction of a new wing. Humphreys entered into a subcontract with Welch to perform the drywall and rough carpentry work, and at the same time, Universal, as surety, issued a performance bond guaranteeing Welch's performance. Welch and Universal had also entered into a general indemnity agreement whereby Welch agreed to indemnify Universal for any losses it incurred in its role as surety on the project. Welch subsequently expressed that it was unable to complete its work on the project due to financial difficulties, and Universal contracted with another contractor to complete Welch's work.

Humphreys commenced an action against Universal on the performance bond alleging that it...