Opinion
January 31, 1991
Appeal from the Supreme Court, New York County (Leonard Cohen, J.).
Plaintiff, as surety, subrogee and assignee of defendant N.A. Orlando Contracting Corp. (Orlando), seeks to recover moneys allegedly owed to defendant Orlando in connection with a construction contract pursuant to which defendant Orlando agreed to "furnish, deliver and install water mains and appurtenances" on Wallace Avenue and other locations in Bronx County.
The IAS court did not err in denying plaintiff's motion for partial summary judgment and in refusing to dismiss the first, third and fourth defenses pleaded in the City's answer. It is undisputed that the work was never completed, certain materials belonging to the City were never returned, and the necessary papers for final payment were never submitted. Plaintiff was not entitled to the funds retained by the City until the outstanding obligations under the contract were satisfied, as completion of the work was an express condition precedent to full payment. (Federal Ins. Co. v Andersen Co., 75 N.Y.2d 366.)
Plaintiff's claim of bad faith on the part of the City in not declaring the contractor in default, or, in the alternative, completing the contract and charging plaintiff with the costs of completion, raises triable issues of fact which must be resolved at trial.
Concur — Murphy, P.J., Milonas, Ross, Asch and Rubin, JJ.