Gernatt Asphalt Products, Inc. v. Bensal Construction, Inc.

Order modified and, as modified, affirmed, without costs, in accordance with the following memorandum: We find that Bensal Construction, Inc. (Bensal) under its contract (to furnish stone and gravel for public improvement projects for the County of Erie and the Southtowns Sewage Treatment Agency) with R. P. Myers, Inc. (Myers), the general contractor, was a materialman and not a contractor or a subcontractor (see A & J Buyers v Johnson, Drake & Piper, 25 NY2d 265). Therefore, because plaintiff (which supplied stone and gravel to Bensal) and interpleaded defendants (who performed labor and…