Summary
stating that a provision providing that payment to subcontractor was not due until the owner paid the general contractor, "while providing for a postponement of payment to permit the general contractor an opportunity to obtain funds from the owner, only requires that payment be delayed for a reasonable time after completion of the subcontract work."
Summary of this case from Superior Site Work, Inc. v. Nasdi, LLCOpinion
November 28, 1988
Appeal from the Supreme Court, Queens County (Lonschein, J.).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
The general contractor of a hotel construction project subcontracted with the defendant for the installation of interior dry walls and the defendant in turn subcontracted with the plaintiff for the taping and spackling aspects of that work. Because of a dispute which arose among the owner, the general contractor and the defendant, the defendant has not received full payment for its work, and, relying on a contract provision that payment is not due until the owner has paid the general contractor, has resisted payment of the remaining $54,882.54 due the plaintiff.
We find no triable issue of fact as to the plaintiff's present entitlement to payment. Absent a clear expression to the contrary, a contract provision that payment is not due the subcontractor until the owner has paid the general contractor does not establish a condition precedent for payment but merely fixes a time for payment (see, Grossman Steel Aluminum Corp. v Samson Window Corp, 78 A.D.2d 871, affd 54 N.Y.2d 653; Sturdy Concrete Corp. v. NAB Constr. Corp., 65 A.D.2d 262, appeal dismissed 46 N.Y.2d 938; Schuler-Haas Elec. Co. v. Aetna Cas. Sur. Co., 49 A.D.2d 60, affd 40 N.Y.2d 883). Such a provision, while providing for a postponement of payment to permit the general contractor an opportunity to obtain funds from the owner (Lowy Donnath v. City of New York, 98 A.D.2d 42), only requires that payment be delayed for a reasonable time after completion of the subcontract work (William H. Lane, Inc. v. American Druggists' Ins. Co., 111 A.D.2d 970). It is undisputed that the plaintiff has performed all of the work required of it in a satisfactory manner. Therefore, the defendant may not resist payment of the remaining balance despite the owner's failure to pay the general contractor. Weinstein, J.P., Bracken, Kunzeman and Rubin, JJ., concur.