William H. Lane, Inc. v. American Druggists' Ins. Co.

• Decision Date: 06 June 1985
• Citation: 111 A.D.2d 970,490 N.Y.S.2d 69
• Parties: WILLIAM H. LANE, INC., Respondent, v. AMERICAN DRUGGISTS' INSURANCE COMPANY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 69

490 N.Y.S.2d 69

111 A.D.2d 970

WILLIAM H. LANE, INC., Respondent, v. AMERICAN DRUGGISTS' INSURANCE COMPANY, Appellant.

Supreme Court, Appellate Division Third Department.

June 6, 1985.

Charles E. Snow, Albany (Charles E. O'Brien, Albany, of counsel), for appellant.

Kramer, Wales & Wright, Binghamton (Donald W. Kramer, Binghamton, of counsel), for respondent.

Before MAIN, J.P., and MIKOLL, YESAWICH, LEVINE and HARVEY, JJ.

MIKOLL, Justice.

Appeal from that part of an order of the Supreme Court at Special Term, entered November 27, 1984 in Broome County, which denied defendant's motion for summary judgment dismissing the complaint.

In December 1981, Tri-Porte Construction Corporation (Tri-Porte) entered into a contract with the State University Construction Fund (SUCF) under which it became general contractor of a project at the State University of New York (SUNY) at Binghamton. The contract provided that upon acceptance of all the work, Tri-Porte would submit a final application for payment and, upon approval by SUCF and the architect, Tri-Porte would receive final payment. Defendant, as surety, executed a payment bond with Tri-Porte as principal, under which the two bound themselves to pay all subcontractors for labor and material on the project. In January 1982, plaintiff entered into a subcontract with Tri-Porte which provided that final payment would be due when plaintiff's work was fully completed and performed in accordance with the contract documents and to the satisfaction of the project architect. It also provided that if the architect did not issue a certification for payment or Tri-Porte did not receive payment for any reason that was not plaintiff's fault, Tri-Porte must pay plaintiff on demand. Final payment to plaintiff was due "Per contract of General Contractor with the Owner". The contract provided that:

Upon acceptance of all the work * * * the Contractor shall prepare and submit to the Fund and the Architect, for their approval, a final application for payment, which the Fund, within thirty (30) days after its approval of same, shall pay.

Plaintiff commenced this action against defendant on the payment bond on March 6, 1984. Defendant moved for summary judgment on the ground that plaintiff's action was time barred under State Finance Law § 137(4)(b). The first issue to be resolved is whether Special Term was correct in holding that plaintiff's opposing affidavit was sufficient to defeat defendant's motion for summary judgment.

Defendant contends that plaintiff's affidavit, sworn to by his counsel, is insufficient to defeat defendant's motion because it is not based on personal knowledge. This contention is not well founded. The affidavit by plaintiff's attorney refers to relevant documents already before the court and correspondence between plaintiff and Tri-Porte indicating that work done by plaintiff under its subcontract with Tri-Porte extended into April 1983 and that the commencement of the instant suit was within the one-year limit set forth in State Finance Law § 137(4)(b). We therefore conclude that plaintiff's affidavit, supported by the documents to which it refers, is sufficient to defeat a motion for summary judgment (see Gaeta v. New York News, 62 N.Y.2d 340, 477 N.Y.S.2d 82, 465 N.E.2d 802).

The second issue before us is whether there exists a question of fact as to when payment under the contract became due and whether plaintiff processed its claim within the time strictures of State Finance Law § 137(4)(b). The case of Schuler-Haas Elec. Corp. v....