Town of Wappinger v. Republic Ins. Co.
| Decision Date | 26 July 1982 |
| Citation | 89 A.D.2d 621,452 N.Y.S.2d 674 |
| Parties | TOWN OF WAPPINGER, Plaintiff, v. REPUBLIC INSURANCE COMPANY, Defendant Third-Party Plaintiff-Appellant, et al., Defendant; Richard Reissler, Third-Party Defendant-Respondent; et al., Third-Party Defendant. |
| Court | New York Supreme Court — Appellate Division |
Donald Tirschwell, New City, for defendant third-party plaintiff-appellant.
Before MOLLEN, P. J., and TITONE, WEINSTEIN and RUBIN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover upon a performance bond, defendant third-party plaintiff Republic Insurance Company appeals from an order of the Supreme Court, Dutchess County, dated January 6, 1982, which denied its motion for summary judgment against third-party defendant Reissler in the principal amount of $32,601.28, said sum representing the amount of plaintiff's judgment against Republic in the main action.
Order reversed, on the law, without costs or disbursements, and motion granted to the extent that summary judgment is awarded to Republic conditioned upon Republic's payment to plaintiff of the full amount of the judgment rendered against it.
Serenity Homes, Inc. sought and obtained approval for the subdivision of land in the Town of Wappinger. As a condition to said approval, Serenity agreed to provide improvements to the land including the construction of streets. Serenity and Richard Reissler as principals, and Republic Insurance Company as surety, executed a bond guaranteeing construction of said improvements pursuant to section 277 of the Town Law.
The town sued Republic and Serenity, alleging failure of performance. Republic commenced a third-party action against Reissler and Serenity, the bond principals, to recover on a general indemnity agreement executed by these third-party defendants in favor of Republic.
Reissler defaulted in appearance. Republic's motion for summary judgment against Reissler was granted on default by order of Justice MARTIN dated July 24, 1981. The order contained the provision that "the filing of a hearing note of issue this action will be added to the calendar for inquest".
Judgment was subsequently entered in favor of the town against Republic in the amount of $32,601.28. Republic then moved for a judgment against Reissler in the amount of $32,601.28. There was no opposition to the motion. The motion was denied by order of Justice JIUDICE dated January 6, 1982, "in view of the decision and order of the Hon. LAWRENCE N. MARTIN, Jr., dated ...
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...N.E.2d 175; Consolidated Edison Co. of N.Y. v. Royal Ind. Co., 41 A.D.2d 37, 340 N.Y.S.2d 991; see also, Town of Wappinger v. Republic Insur. Co., 89 A.D.2d 621, 622, 452 N.Y.S.2d 674). In the interest of judicial economy, Travelers should be permitted to assert third-party causes of action......
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...of a principal action, but not before the principal action itself has been filed. See Town of Wappinger v. Republic Ins. Co., 89 A.D.2d 621, 622, 452 N.Y.S.2d 674, 675 (N.Y.App.Div. 2d Dep't 1982) ( citing McCabe v. Queensboro Farm Prods., Inc., 22 N.Y.2d 204, 208, 292 N.Y.S.2d 400, 239 N.E......