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Construction Pace Setters, Inc. v. United States Fidelity & Guaranty Co.

225 A.D.2d 1090 Court N.Y. App. Div. Decision date 1996-03-08 English

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p. 1090
Construction Pace Setters, Inc., Appellant, v United States Fidelity and Guaranty Company, Respondent.
[639 NYS2d 191]

Memorandum: Supreme Court properly dismissed the complaint on Statute of Limitations grounds (see, CPLR 3211 [a] [5]). Even assuming, arguendo, that the limitations period of State Finance Law § 137 applies, plaintiff, a subcontractor, failed timely to commence this action against defendant, which issued a labor and materials bond under that section. An action on a bond issued under that section must be commenced within "one year from the date on which final payment under the claimant’s subcontract became due” (State Finance Law § 137 [4] [b]). The pay when paid provision of the subcontract does not extend the limitations period indefinitely, but merely establishes a time for payment (see, Schuler-Haas Elec. Corp. v Aetna Cas. & Sur. Co., 49 AD2d 60 , 64-66, affd 40 NY2d 883 ). Plaintiff did not commence this action until one year and seven months after work on the contract had ceased, and thus, plaintiff failed to commence the action within one year of "a

p. 1091
reasonable time after completion of the work to permit the general contractor an opportunity to obtain funds from the owner” (William H. Lane, Inc. v American Druggists’ Ins. Co., 111 AD2d 970 , 971; cf., Cortland Paving Co. v Capitol Dist. Contrs., 111 AD2d 955 , 956). (Appeal from Order of Supreme Court, Erie County, Howe, J. — Dismiss Action.) Present — Den-man, P. J., Green, Fallon, Callahan and Doerr, JJ.

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