Structural Painting Corp. v. Travelers Indem. Co.

• Decision Date: 27 May 1982
• Citation: 451 N.Y.S.2d 875,88 A.D.2d 743
• Parties: STRUCTURAL PAINTING CORP., Plaintiff, v. TRAVELERS INDEMNITY COMPANY, Defendant. STRUCTURAL PAINTING CORP., Plaintiff, v. PERLSTEIN BUILDERS, INC., Defendant and Third-Party Plaintiff-Appellant; New York State Urban Development Corporation, Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 875

451 N.Y.S.2d 875

88 A.D.2d 743

STRUCTURAL PAINTING CORP., Plaintiff, v. TRAVELERS INDEMNITY COMPANY, Defendant.

STRUCTURAL PAINTING CORP., Plaintiff, v. PERLSTEIN BUILDERS, INC., Defendant and Third-Party

Plaintiff-Appellant;

New York State Urban Development Corporation, Third-Party

Defendant-Respondent.

Supreme Court, Appellate Division,

Third Department.

May 27, 1982.

John S. McBride, Monticello (Michael Davidoff, Monticello, of counsel), for Perlstein Builders, Inc. Holzka, Donahue, Kuhn & Howard, Staten Island (Steven P. Howard, Staten Island, of counsel), for NYS Urban Development Corp.

Before MAHONEY, P. J., and SWEENEY, KANE, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered August 19, 1981 in Ulster County, which granted the third-party defendant's motion for summary judgment dismissing the third-party plaintiff's complaint.

Perlstein Builders, Inc. (Perlstein), third-party plaintiff, entered into an agreement with the New York State Urban Development Corporation (UDC), third-party defendant, to construct a residential housing project in Kingston, New York. Perlstein, as general contractor, hired plaintiff Structural Painting Corporation (Structural), as subcontractor to perform exterior painting on the project. Upon completion of the project and in consideration of the final payment, Perlstein executed two general releases to UDC, dated August 19, 1974.

In October, 1975, Structural commenced an action against Travelers Indemnity Company as surety on a performance bond secured on behalf of Perlstein. Subsequently, Structural commenced an action against Perlstein and in both actions contends that Perlstein owes it approximately $20,000 for extra work done. Perlstein denied ordering any extra work and maintained that any such work was the result of an agreement between Structural and UDC. Perlstein served a third-party summons and complaint on UDC for indemnification. UDC moved for summary judgment based on the general releases given by Perlstein. Special Term granted the motion by UDC and this appeal ensued.

It is well established that where the language of the release is clear and unambiguous, effect must be given to the intent of the parties as evidenced by the language employed (Matter of Schaefer, 18 N.Y.2d 314, 274 N.Y.S.2d 869, 221 N.E.2d 538). If it is contended that a contrary meaning was intended, the releasor must bear the burden of establishing that the...