Opinion
CA 03-01544.
Decided March 19, 2004.
Appeal from an order of the Supreme Court, Allegany County (Thomas P. Brown, A.J.), entered October 29, 2002. The order granted plaintiff's motion for partial summary judgment in part and denied defendants' motion for a stay of the action.
DAVIDSON, FINK, COOK, KELLY GALBRAITH, LLP, ROCHESTER (FERNANDO SANTIAGO OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
DAMON MOREY LLP, BUFFALO (EDWARD P. YANKELUNAS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., PINE, SCUDDER, KEHOE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action to recover sums allegedly due from defendants pursuant to the terms of the General Indemnity Agreement (Agreement) executed by the parties in connection with performance and payment bonds issued by plaintiff to defendant Genesee Valley Nurseries, Inc. (GVN). Supreme Court properly granted that part of plaintiff's motion seeking partial summary judgment on the second cause of action to the extent of determining that plaintiff is entitled to the posting of collateral security by defendants. Pursuant to the Agreement, defendants are required to furnish collateral security upon plaintiff's demand if a claim is asserted against plaintiff. Plaintiff submitted proof in admissible form that it received claims under the bonds it issued on behalf of GVN, and it is thus entitled to specific performance of that part of the Agreement requiring defendants to furnish collateral security ( see BIB Constr. Co. v. Fireman's Ins. Co. of Newark, N.J., 214 A.D.2d 521, 523). Defendants failed to raise a triable issue of fact. Rather, defendants' challenge to plaintiff's right to collateral security "confuses the requirement to furnish collateral security with an award [of] indemnification" ( id.). In addition, the court properly exercised its discretion in denying defendants' motion for a stay of the action pending the outcome of a related action ( see Matter of Brooklyn Union Gas Co. v. State Bd. of Equalization Assessment, 97 A.D.2d 897; cf. El Greco Inc. v. Cohn, 139 A.D.2d 615, 616-617).