Opinion
September 20, 1982
In an action by the obligee, Town of Ramapo, to recover on two original performance bonds issued in connection with the approval of a final subdivision plat, in which two third-party actions were brought based upon two subsequent performance bonds issued by Republic Insurance Company, all the parties except Clarkstown Equities Corp., appeal from an order and judgment (one paper) of the Supreme Court, Rockland County (Zeck, J.), dated October 31, 1980, which, inter alia, granted plaintiff leave to serve an amended complaint to plead a cause of action directly against Republic Insurance Company. Order and judgment affirmed, without costs or disbursements. In its brief submitted on this appeal the plaintiff does not contest the dismissal of its complaint as to International Fidelity Insurance Company, the surety on the original performance bonds. We find no merit to the contentions raised by the other appellants. Some of the arguments must await the amended pleadings, if any, and the future trial, e.g., Republic Insurance Company's contention that International Fidelity Insurance Company, as assignee, is the sole beneficiary of the two subsequent performance bonds issued by Republic Insurance Company, and that the dismissal of the action against International Fidelity bars an action against Republic as well, and International Fidelity's contention that the cross claim against it should have been dismissed. Others, such as Republic's contention that the trial court's decision exceeded the stipulation and the evidence before it, are not borne out by the record. O'Connor, J.P., Bracken, Niehoff and Boyers, JJ., concur.