Opinion
October 3, 1994
Appeal from the Supreme Court, Putnam County (Hickman, J.).
Ordered that the order and judgment is affirmed, with costs to the plaintiff-respondent.
The performance bond issued by the defendant Seaboard Surety Company was issued to protect the plaintiff Town of Southeast in the event that the defendant Horizon Construction Corp. failed to complete certain site improvements in the Bailey Manor subdivision. Because there is no evidence of intent to benefit third parties, the appellant, as an unpaid subcontractor, has no right to recover from the bond proceeds as an intended third-party beneficiary (see, Fourth Ocean Putnam Corp. v Interstate Wrecking Co., 66 N.Y.2d 38, 43-44; Scales-Douwes Corp. v. Paulaura Realty Corp., 24 N.Y.2d 724, 726; Fosmire v. National Sur. Co., 229 N.Y. 44; HNC Realty Co. v. Bay View Towers Apts., 64 A.D.2d 417, 424). The Supreme Court therefore properly dismissed the appellant's cross claim. To the extent that our decision may be inconsistent with a prior order of the Supreme Court (Dickinson, J.), which granted Peckham Materials Corporation intervenor status, we note only that we are not bound by the law of the case (see, Detko v. McDonald's Rests., 198 A.D.2d 208, 209).
As to the appellant's counterclaim against the Town for unjust enrichment, the Supreme Court correctly concluded that the order of the Supreme Court (Dickinson, J.), granting the appellant leave to intervene, granted the appellant the right to seek a declaratory judgment in this case, but denied the appellant leave to intervene to assert additional claims, such as a counterclaim sounding in unjust enrichment. Moreover, the Town is required by law to use the bond proceeds to complete the improvements in question, and to refund to the surety any amount not needed to complete the bonded work (see, Town Law § 277 [e]; Town of Wappinger v. Republic Ins. Co., 97 A.D.2d 840; Town of Shawangunk v. Goldwil Props. Corp., 61 A.D.2d 693, 695). We therefore find no basis for the counterclaim sounding in unjust enrichment. Balletta, J.P., O'Brien, Copertino and Florio, JJ., concur.