Construction Pace Setters, Inc. v. United States Fidelity & Guaranty Co.

Memorandum: Supreme Court properly dismissed the complaint on Statute of Limitations grounds (see, CPLR 3211 [a] [5]). Even assuming, arguendo, that the limitations period of State Finance Law § 137 applies, plaintiff, a subcontractor, failed timely to commence this action against defendant, which issued a labor and materials bond under that section. An action on a bond issued under that section must be commenced within "one year from the date on which final payment under the claimant’s subcontract became due” (State Finance Law § 137 [4] [b]). The pay when paid provision of the subcontract…