Opinion
November 13, 1972
In an action, pursuant to section 137 State Fin. of the State Finance Law, to recover upon a surety bond given to secure payment of money allegedly due under a contract for furnishing materials for a public improvement, defendant appeals from (1) an order of the Supreme Court, Westchester County, dated December 28, 1971, which granted plaintiff's motion for summary judgment, and (2) a judgment of the same court entered January 7, 1972 upon said order. Order and judgment reversed, without costs, and motion denied. In our opinion, issues of fact were presented which precluded the granting of plaintiff's motion for summary judgment. Rabin, P.J., Munder, Latham, Shapiro and Christ, JJ., concur.