Town of Southeast v. Seaboard Surety Co.

In an action to recover the proceeds of a bond, the intervenor Peckham Materials Corp. appeals from an order and judgment (one paper) of the Supreme Court, Putnam County (Hickman, J.), dated November 25, 1992, which granted motions by the plaintiff Town of Southeast and the defendants Seaboard Surety Company and Horizon Construction Corp. for summary judgment dismissing its counterclaim and cross claim, respectively, and denied its motion for summary judgment in its favor.

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 Construe-* tion 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 NY2d 38 , 43-44; Scales-Douwes Corp. v Paulaura Realty Corp., 24 NY2d 724 , 726; Fosmire v National Sur. Co., 229 NY 44 ; HNC Realty Co. v Bay View Towers Apts., 64 AD2d 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 AD2d 208 , 209).