Opinion
3871, 3872, 3872A, 3872B.
Decided June 10, 2004.
Judgments, Supreme Court, New York County (Richard B. Lowe, III, J.), entered June 24 and December 19, 2003, which dismissed the complaint as against defendants Reliance Insurance and Thomsen Construction, unanimously affirmed, with costs. Appeals from orders, same court and Justice, entered May 20 and on or about November 7, 2003, which granted those defendants' motions for summary judgment, unanimously dismissed, without costs, as subsumed in the appeals from the judgments.
Moss Kalish, PLLC, New York (Mark L. Kalish of counsel), for appellant.
Westermann Hamilton Sheehy Aydelott Keenan LLP, Garden City (Michael F. Kuzow of counsel), for respondents.
Before: Buckley, P.J., Lerner, Friedman, Marlow, Sweeny, JJ.
Plaintiff's failure to comply with the notice provisions of the performance bond issued by Reliance precludes it from now maintaining this action for damages against the bond's surety. Contrary to plaintiff's contention that these notice provisions are not conditions precedent to recovery against the surety, this bond mandates that pre-default notification be given to the contractor and surety by the owner ( see Walter Concrete Constr. Corp. v. Lederle Labs., 99 N.Y.2d 603, 605). Furthermore, plaintiff's failure to invoke the claim resolution mechanism in its construction contract with Thomsen bars it from seeking recovery from this entity ( see Garofalo Elec. Co. v. New York Univ., 270 A.D.2d 76, 80, lv dismissed 95 N.Y.2d 825).
We have considered plaintiff's other arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.