92 A.D.2d 991 | N.Y. App. Div. | 1983
Cross appeals from an order of the Supreme Court at Special Term (Viscardi, J.), entered March 4,1982 in Essex County, which partially granted plaintiff’s motion to dismiss various affirmative defenses asserted by defendants and partially granted defendants’ motions for summary judgment dismissing the complaint. On May 2,1977, plaintiff James McKinney & Son, Inc. (McKinney), entered into a contract with defendant Lake Placid 1980 Olympic Games, Inc. (LPOG), to fabricate and erect certain steel structures for use in the construction of the Olympic Field House at Lake Placid. Defendant Gilbane Building Company (Gilbane) was named the project manager; defendant Kahn and Jacobs, Hellmuth, Obata and Kassabaum (Kahn) was designated as project architect; and defendant Jack D. Gillum Associates (Gillum) became design engineer. Plaintiff encountered difficulties in fulfilling its obligations and on or about March 31, 1978, LPOG terminated the contract. One week later plaintiff filed a petition in bankruptcy under chapter 11. Thereafter, Reliance Insurance Company (Reliance), plaintiff’s surety, pursuant to a continuing agreement of indemnity which it had entered into with McKinney in 1974,