STAR BUILDERS INC v. NOVEL IRON WORKS INC (2000)

Order, Supreme Court, Bronx County (Barry Salman, J.), entered January 20, 1999, which denied the motion of defendant-appellant Aetna Casualty & Surety Company (“Aetna”), for summary judgment dismissing the cross claim of defendant and third-party plaintiff AAF-McQuay Inc. (“McQuay”), unanimously reversed, on the law, without costs, the motion granted and the cross claim dismissed.

It is undisputed that McQuay manufactured fan coils specifically for the project covered by the bond, that the coils were never delivered, and that since manufacture, the fan coils were held in a rigger's yard in Brooklyn, while the project was in the Bronx.   By its terms, the bond does not apply to undelivered materials.   Only materials used “at or in the vicinity of” the job site are covered by the bond (See, Maryland Casualty Co. v. Board of Water Com'rs of the City of Dunkirk, 66 F.2d 730, cert. denied, 290 U.S. 702, 54 S.Ct. 346, 78 L.Ed. 603).   Therefore, the IAS Court erred in denying summary judgment.

MEMORANDUM DECISION.