Summary
applying CPLR 213 to action to recover on bond
Summary of this case from Morris v. People's Republic of ChinaOpinion
December 8, 1997
Appeal from the Supreme Court, Suffolk County (Hall, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendant is severed.
We disagree with the Supreme Court's conclusion that the term of the surety bonds in question was ambiguous. Both bonds included language requiring the completion of certain public improvements within one year of their execution. The Supreme Court's interpretation that the term of the bonds was ambiguous would render this language meaningless (see, Sunrise Mall Assocs. v. Import Alley, 211 A.D.2d 711). When the defendant Gracetown Homes, Inc., as principal, failed to complete the improvements within that year, the Town possessed the legal right to demand payment under the bonds and to enforce its demand in court. Thus, the action accrued and the Statute of Limitations began to run one year after the execution of the bonds (see, Matter of Oakdale 36 Unit Corp. v. Maytal Constr. Corp., 198 A.D.2d 418, 420; State of New York v. Peerless Ins. Co., 117 A.D.2d 370, 373; State of New York v. City of Binghamton, 72 A.D.2d 870, 871), and the Town may not extend the Statute of Limitations by simply failing to make a demand (see, State of New York v. City of Binghamton, supra).0 This action, brought more than six years after that date, is, therefore, barred by the Statute of Limitations (see, CPLR 213; American Trading Co. v. Fish, 42 N.Y.2d 20; Village of Herkimer v. American Sur. Co., 18 A.D.2d 94), and the appellant's motion to dismiss the complaint insofar as asserted against it should have been granted.
Rosenblatt, J. P., Miller, Copertino and Goldstein, JJ., concur.