103 A.D.2d 1010 | N.Y. App. Div. | 1984
— Order unanimously affirmed, with costs. Memorandum: In September, 1980 plaintiff, for the agreed price of $15,000, constructed the binder course for several roads in a tract being developed by Caciga Realty Corp. (Caciga). Caciga gave its note to plaintiff for $15,000, payable in June, 1981, at which time Caciga paid plaintiff $2,500 and gave plaintiff a new note for $12,500. II On January 5, 1981, Caciga entered into a contract with the Town of Onondaga under which the town agreed to accept title to the road prior to their completion, provided Caciga obtained a performance bond, guaranteeing construction, in the penal amount of $30,000. The contract further provided that certificates of occupancy would not be issued for any homes until completion of the binder course, that Caciga would complete the roads within one year after the issuance of the certificate of completion of the binder course, and that Caciga would maintain the roads for one year after final completion. 11 The bond which Caciga obtained from defendant Aetna Casualty and Surety Company (Aetna) is a payment bond, not a performance bond, and is dated December 29, 1980. It names Caciga as principal and the Town of Onondaga as owner; it makes reference to the Caciga-Town of Onondaga contract; and it proscribes suit against the surety unless brought “within two years after completion of the work mentioned in said contract”. Caciga failed to complete the roads and the Town of Onondaga completed their construction in November, 1982. 11 On January 31, 1983 plaintiff commenced this action seeking recovery under the bond for the balance of $12,500 due from Caciga. Defendant moved under CPLR 3211 to dismiss for failure to state a cause of action, and plaintiff cross-moved for summary judgment. Neither at Special Term nor in this court has defendant argued that plaintiff’s cross motion is premature because issue has not been joined, and we treat the motion as one converted under CPLR 3211 (subd [c]). Special Term granted