A.C. Legnetto Construction, Inc. v. Hartford Fire Insurance

—Order affirmed without costs. Memorandum: Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint as barred by the applicable one-year Statute of Limitations (see, State Finance Law § 137 [4] [b]). Plaintiff commenced this action seeking monies due subcontractors based on a contractor’s performance bond filed in connection with a public improvement project. Defendant contends that, because the bond does not refer to the statute, it is subject to the six-year Statute of Limitations for breach of contract actions (see, CPLR 213 [2]). We disagree. The bond is required by section 137 (see, Dutchess Quarry & Supply Co. v Firemen’s Ins. Co., 190 AD2d 36, 38), and, in the absence of a provision in the bond extending the period of limitation, we conclude that the one-year statutory period applies (see, Scaccia Concrete Corp. v Hartford Fire Ins. Co., 212 AD2d 225).

All concur except Pine, J. P., and Callahan, J., who vote to reverse and reinstate the complaint in the following Memorandum: