Aabco Sheet Metal Co. v. Seven West 34th Street Development Corp.

Full title: AABCO SHEET METAL CO., INC., Appellant, v. SEVEN WEST 34TH STREET…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Oct 3, 1995

220 A.D.2d 229 (N.Y. App. Div. 1995)

632 N.Y.S.2d 3

Opinion

October 3, 1995

Appeal from the Supreme Court, New York County (Beatrice Shainswit, J.).

Plaintiff's claim that defendants should be estopped from asserting the 90-day notice provision in the payment bond is without merit, given no actual misrepresentation that such a bond did not exist ( see, Gleason v. Spota, 194 A.D.2d 764, 765) that lulled plaintiff into inactivity ( see, Triple Cities Constr. Co. v. Maryland Cas. Co., 4 N.Y.2d 443, 448). Here, plaintiff shows at most that its inquiries concerning the bond's existence were met only with silence, which, far from lulling plaintiff, should have alerted it to the need for more assertive measures.

Concur — Sullivan, J.P., Wallach, Rubin, Ross and Nardelli, JJ.