TISHMAN WESTWIDE CONSTRUCTION LLC v. RLI (2006)

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered on or about June 2, 2005, which granted defendant surety's motion for summary judgment dismissing the complaint against it and denied plaintiffs' cross motion for partial summary judgment, unanimously affirmed, with costs.

 The conditions of the bond with which plaintiff owner failed to comply went directly to the surety's liability, and required strict compliance (see Greenwich Dev. Assoc. v. Reliance Ins. Co., 2004 U.S. Dist. LEXIS 10514, *33-37, 2004 WL 1277998, *11-13 [S.D.N.Y.];   see also Northeast Constr. Group, Inc. v. Deconstruction, Inc., 16 A.D.3d 357, 793 N.Y.S.2d 17 [2005], lv. denied 5 N.Y.3d 709, 803 N.Y.S.2d 30, 836 N.E.2d 1153 [2005] ).   Similarly, RLI was discharged from its liability on its surety bond because plaintiff materially breached its contractual duties to RLI by failing to provide RLI with the opportunity to exercise its options under paragraph 4 of the bond and with a 15-day notice to cure under paragraph 5 (see Seaboard Sur. Co. v. Town of Greenfield, 370 F.3d 215, 224 [1st Cir.2004] ).   Upon our own review of the record, we reject plaintiffs' argument that the surety waived the foregoing provisions by taking over the work;  it merely provided financing (see United States ex rel. Maris Equip. Co. v. Morganti, Inc., 163 F.Supp.2d 174, 194-195 [E.D.N.Y.2001], affd. on judgment 67 Fed.Appx. 68 [2d Cir.2003] ).   The judgment in favor of the surety for indemnification against the contractor on the bond does not establish the surety's liability to plaintiffs (see International Fid. Ins. Co. v. Spadafina, 192 A.D.2d 637, 596 N.Y.S.2d 453 [1993] ).

We have considered plaintiffs' other contentions and find them unavailing.