Opinion
2001-03588
Argued April 16, 2002.
May 8, 2002.
In an action to recover on a payment bond, the defendant appeals from an order of the Supreme Court, Queens County (Schmidt, J.), dated February 21, 2001, which denied its motion to dismiss the complaint.
Carro, Velez, Carro Mitchell, LLP, New York, N.Y. (G. Hanna Antonsson of counsel), for appellant.
Gutman Gutman, P.C., Port Washington, N.Y. (Halima Akhtar-Gutman of counsel), for respondent.
Before: RITTER, J.P., GOLDSTEIN, LUCIANO, SCHMIDT, JJ.
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The general contractor on a public improvement project with the New York City Department of Parks and Recreation entered into a contract with Diamond Blacktop, which then entered into a contract with the plaintiff, Willets Point Asphalt Corp., for the supply of asphalt materials. The general contractor obtained a payment bond from the defendant, R.L.I. Insurance Company. The bond, by its terms, had a two-year statute of limitations, but was silent as to notice requirements.
The plaintiff filed a mechanic's lien 15 months after it had last supplied materials on the project, asserting that it was not paid in connection with the project. Other than the mechanic's lien, the plaintiff did not give notice to either the general contractor or the defendant that it was owed money on the project. The defendant moved to dismiss the plaintiff's complaint, which seeks to recover on the payment bond, asserting, inter alia, that the plaintiff failed to give notice of its claim to the general contractor within 120 days from the date on which the last material was furnished by it, as required by State Finance Law § 137(3).
The defendant's motion should have been granted. We reject the plaintiff's argument that the bond in question was not furnished pursuant to State Finance Law § 137(3). The general contractor was required by that statute to furnish a bond, and it was the only one furnished in connection with the project. Therefore, "it must be deemed to have been furnished to satisfy the statutory requirement" (Legnetto Constr. v. Hartford, 92 N.Y.2d 275, 278).
State Finance Law § 137(3) provides that "a person having a direct contractual relationship with a subcontractor of the contractor furnishing the payment bond but no contractual relationship express or implied with such contractor shall not have a right of action upon the bond unless he shall give written notice to such contractor within one hundred twenty days from the date on which the last of the labor was performed or the last of the material was furnished, for which his claim is made." Since the bond did not contain a more liberal notice requirement, the above-quoted provision of State Finance Law § 137(3) is applicable (see Legnetto v. Constr., 92 N.Y.2d at 278-279). Since it is undisputed that the plaintiff did not give written notice of its claim to the general contractor within 120 days from the date on which it last supplied materials on the project, the defendant was entitled to dismissal of the complaint.
RITTER, J.P., GOLDSTEIN, LUCIANO and SCHMIDT, JJ., concur.