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Facilities Dev. Corp. v. Nautilus Constr

Appellate Division of the Supreme Court of New York, Third Department
Dec 28, 1989
156 A.D.2d 911 (N.Y. App. Div. 1989)

Summary

noting that a condition precedent exists when the contract shows an intent by the parties to have one party's performance precede any obligation by the other party

Summary of this case from N HOUSTON INTL. v. PW REAL EST INV

Opinion

December 28, 1989

Appeal from the Supreme Court, Albany County (Hughes, J.).


Plaintiff, a public benefit corporation, entered into three contracts with defendant Nautilus Construction Corporation (hereinafter Nautilus) for heating, plumbing and electrical renovation work at a community residence for the mentally retarded and developmentally disabled. The contracts contained provisions requiring Nautilus to obtain fire insurance of its work and provided that: "Before commencing the work [Nautilus] shall furnish to [plaintiff] a certificate or certificates of [fire] insurance in form satisfactory to [plaintiff] showing that it has complied with this Article". Nautilus began work on June 18, 1981. On September 10, 1981, plaintiff received from Nautilus a fire insurance binder naming plaintiff as loss payee on an All City Insurance Company policy covering the community residence. Nautilus had also procured performance bonds for the work which were issued by defendant International Fidelity Insurance Company (hereinafter defendant). On October 14, 1981, the community residence was destroyed by fire. Nautilus' fire insurance company denied coverage on the ground that, inter alia, it did not issue policies insuring a builder's risk. Thereafter, plaintiff commenced this action against Nautilus for breach of contract in failing to properly maintain the fire insurance and against defendant as surety on its performance bond. Defendant subsequently moved for summary judgment dismissing the complaint against it, contending that plaintiff breached or waived a condition precedent to the contract by permitting Nautilus to begin work prior to submitting a certificate of fire insurance and by accepting an insufficient insurance binder from Nautilus. Supreme Court denied the motion, holding, inter alia, that the fire insurance provisions of the contract were not conditions precedent. This appeal by defendant followed.

We affirm. "To make a provision in a contract a condition precedent, it must appear from the contract itself that the parties intended the provision so to operate" (22 N.Y. Jur 2d, Contracts, § 234, at 82). We cannot construe the construction contracts as requiring performance of the insurance provisions therein as a condition precedent to the obligations of the parties thereunder. Unlike Lucarelli Co. v Central Sur. Ins. Corp. ( 11 Misc.2d 516), in which having workers' compensation insurance was a condition precedent to the contract's existence, obtaining fire insurance here was one provision among several that the parties intended to be performed in due course under the contract. Given that conclusion, we find that sufficient issues of fact exist such that Supreme Court properly denied defendant's motion for summary judgment.

Order affirmed, without costs. Kane, J.P., Casey, Weiss, Mercure and Harvey, JJ., concur.


Summaries of

Facilities Dev. Corp. v. Nautilus Constr

Appellate Division of the Supreme Court of New York, Third Department
Dec 28, 1989
156 A.D.2d 911 (N.Y. App. Div. 1989)

noting that a condition precedent exists when the contract shows an intent by the parties to have one party's performance precede any obligation by the other party

Summary of this case from N HOUSTON INTL. v. PW REAL EST INV
Case details for

Facilities Dev. Corp. v. Nautilus Constr

Case Details

Full title:FACILITIES DEVELOPMENT CORPORATION, Respondent, v. NAUTILUS CONSTRUCTION…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Dec 28, 1989

Citations

156 A.D.2d 911 (N.Y. App. Div. 1989)
550 N.Y.S.2d 127

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