Opinion
February 10, 1998
Appeal from the Supreme Court, New York County (Charles Ramos, J.).
The payment bond under which plaintiff claims against defendant Aetna provides that no action may be brought against Aetna more than two years after the complete performance and final settlement of the underlying construction contract. That contract was terminated for convenience by the Metropolitan Transportation Authority (MTA) on May 6, 1988, and final settlement took place on July 29, 1992. Complete performance of the contract was accomplished when the MTA terminated the agreement for its convenience (see, Matter of Ferran Concrete Co. v. Avon Elec. Supplies Corp., 128 A.D.2d 527). Accordingly, plaintiff's action against Aetna, commenced on July 9, 1996, was untimely under the contractual period of limitations by termination and final settlement. Aetna's advise to plaintiff, prior to expiration of the limitations period, that it was going to investigate plaintiff's claim under the bond, was insufficient, without more, to show any waiver or estoppel (Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 968).
Concur — Rosenberger, J. P., Ellerin, Nardelli and Rubin, JJ.