Rockland County v. Aetna Cas. & Sur. Co.
| Decision Date | 13 April 1987 |
| Court | New York Supreme Court — Appellate Division |
| Parties | COUNTY OF ROCKLAND, Appellant, v. The AETNA CASUALTY & SURETY COMPANY, Defendant Third-Party Plaintiff-Respondent; Field Electric Company, Inc., et al., Third-Party Defendants-Respondents. |
Ilan S. Schoenberger, Co. Atty., New City (Martin Hurwitz, of counsel), for appellant.
Hendler & Murray, P.C., New York City (Michael C. Simmons, of counsel), for defendant third-party plaintiff-respondent.
Max E. Greenberg, Cantor & Reiss, New York City (Leonard Shabasson, of counsel), for third-party defendants-respondents.
Before MOLLEN, P.J., and MANGANO, EIBER and SULLIVAN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for breach of an obligation as surety under payment and performance bonds, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Rockland County (Ruskin, J.), entered December 19, 1985, as granted the defendant third-party plaintiff's cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the defendant third-party plaintiff and third-party defendants appearing separately and filing separate briefs.
The defendant third-party plaintiff surety's obligation in this case to complete work left unfinished by its principal, the third-party defendant Field Electric Company, Inc. (hereinaft Field), was made conditional pursuant to the performance bond issued, upon that third-party defendant's default on the contract. Thus, the defendant third-party plaintiff could only be held liable for failure to comply with the plaintiff's demand to complete the work on Field's contract with the plaintiff if Field had defaulted on its contract (see, Walcutt v. Clevite Corp., 13 N.Y.2d 48, 56, 241 N.Y.S.2d 834, 191 N.E.2d 894; Eckstein v. Massachusetts Bonding & Ins. Co., 281 N.Y. 435, 438, 24 N.E.2d 114, rearg. denied 282 N.Y. 590, 25 N.E.2d 144; Lamparter Acoustical Prods. v. Maryland Cas. Co., 64 A.D.2d 693, 407 N.Y.S.2d 579; Miller v. Fitzpatrick, 227 App.Div. 745, 746, 236 N.Y.S. 638).
At the arbitration proceeding which preceded this action, the plaintiff made a counterclaim for all damages sustained as a result of Field's failure to complete the work on the contract. This counterclaim was denied in its entirety by the arbitrators. This was, in effect, a determination that the plaintiff had no...
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