You are here: / / FAILURE TO COMPLY WITH THE NOTICE OF DEFAULT REQUIREMENTS IN THE BUILDING-CONSTRUCTION...

FAILURE TO COMPLY WITH THE NOTICE OF DEFAULT REQUIREMENTS IN THE BUILDING-CONSTRUCTION BOND PRECLUDED RECOVERY UNDER THE BOND FOR CONSTRUCTION DELAYS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Friedman, determined plaintiff’s failure to comply with the notice of default requirements in the building-construction bond precluded recovery under the bond for construction delays:

With regard to the “trigger” of the surety’s obligation, paragraph 3 of the A312 bond provides that “the Surety’s obligation under this Bond shall arise after” … the beneficiary of the bond (1) has notified the surety and the principal that it is considering declaring a default and offered to confer with the surety and the principal to discuss how to proceed, (2) has declared a default and formally terminated the principal’s right to complete the contract no earlier than 20 days after the aforementioned notice, and (3) has agreed to pay the balance of the contract price to the surety or to a new contractor chosen by the surety. * * *

​Upon [plaintiff’s] appeal, we affirm on the ground that JDS’s claim for delay damages under the 36-floor bond is barred by [plaintiff’s] failure to have complied, at any time before the bonded work had been completed, with the condition precedent of the notice and termination procedures specified in paragraph 3 of the bond. JDS Dev. LLC v Parkside Constr. Bldrs. Corp., 2024 NY Slip Op 04227, First Dept 8-15-24

Practice Point: Compliance with the notice of default provisions in an A312 building-construction bond is a condition precedent to recovery under the bond for construction delays.​

 

You might also like
QUESTIONS OF FACT WHETHER PEBBLE-SIZED DEBRIS WHICH FELL ON PLAINTIFF AND ALLEGEDLY SERIOUSLY INJURED HIS EYE GAVE RISE TO LIABILITY UNDER LABOR LAW 240(1) AND 241(6) (FIRST DEPT).
ALTHOUGH THE CHILD HAD NOT BEEN HARMED, MOTHER’S MENTAL ILLNESS JUSTIFIED THE NEGLECT FINDING.
OVERRULING PRECEDENT, THE FAILURE TO TIMELY FILE A CERTIFICATE OF MERIT IN A MEDICAL MALPRACTICE ACTION IS NOT A GROUND FOR DISMISSAL OF THE ACTION; IT IS NOT NECESSARY TO DEMONSTRATE THE ACTION HAS MERIT OR AN EXCUSE FOR THE FAILURE TO FILE IN SEEKING AN EXTENSION TO FILE THE CERTIFICATE (FIRST DEPT).
THE 30-DAY NOTICE PROVISION IN THE MORTGAGE DID NOT PRECLUDE ACCELERATING THE DEBT BY THE ALLEGATIONS IN THE FORECLOSURE COMPLAINT, SUPREME COURT SHOULD NOT HAVE NULLIFIED THE ACCELERATION (FIRST DEPT).
IT IS NOT CLEAR FROM THE CONTRACT WHETHER DEFENDANT TRUSTEE WAS TO PERFORM A MERELY MINISTERIAL FUNCTION OR A GATEWAY FUNCTION IN ACCEPTING ASSETS FOR THE TRUST FROM A NONPARTY WHICH WAS ACTING FRAUDULENTLY; THERE ARE QUESTIONS OF FACT ABOUT WHETHER THE DAMAGES ASSOCIATED WITH ACCEPTING NON-NEGOTIABLE ASSETS WERE DIRECT OR INDIRECT AND WHETHER A FIDUCIARY DUTY WAS BREACHED (FIRST DEPT).
ALTHOUGH THE PLAINTIFFS’ $96,000, CONSTITUTING TWO MONTHS’ RENT AND A SECURITY DEPOSIT, WAS TRANSFERRED TO DEFENDANT FROM AN ATTORNEY’S IOLA ACCOUNT, THE $96,000 CONSTITUTED AN “IDENTIFIABLE FUND” WHICH DEFENDANT “CONVERTED” WHEN IT WAS NOT RETURNED (FIRST DEPT).
ALTHOUGH SUCCESSIVE SUMMARY JUDGMENT MOTIONS ARE DISFAVORED; HERE THE ISSUES IN EACH MOTION DID NOT OVERLAP AND APPELLANTS OFFERED A SUFFICIENT REASON. I.E. THE FIRST MOTION PRECEDED DEFENDANT’S DEPOSITION IN WHICH HE ADMITTED SWERVING INTO APPELLANTS’ VEHICLE (FIRST DEPT).
ALTHOUGH THE MOLINEUX EVIDENCE OF TWO PRIOR BURGLARIES WAS RELEVANT TO THE DEFENDANT’S INTENT TO BURGLARIZE THE BUILDING IN WHICH HE WAS FOUND BY THE POLICE, THE EXTENSIVE, DETAILED EVIDENCE OF THE PRIOR BURGLARIES RENDERED THE EVIDENCE TOO PREJUDICIAL, CONVICTION REVERSED (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

HERE THE MARINA OWNER SERVED THE BOAT OWNER WITH A NOTICE OF SALE (FOR FAILURE... HERE THE COMPLAINT STATED A CHILD-VICTIMS-ACT CAUSE OF ACTION AGAINST THE STATE;...