June 11, 2021

Jordan R. Pavlus Obtains Fourth Department Appellate Division Decision Enforcing State Finance Law Section 137

Jordan R. Pavlus recently obtained a decision from the Fourth Department Appellate Division which re-affirms that a bond claimant which has no direct contract with the general contractor must establish that notice of the bond claim was “actually received.” State Finance Law section 137 provides that a bond claimant without a direct contract with the general contractor must provide notice of its bond claim to the general contractor within 120 days of its last labor or material on the project. The statute provides that service of the notice may be made via registered mail, personal delivery, or some other method, so long as the notice is “actually received” within 120 days by the general contractor.

The supplier in the case took the position that it provided notice to the general contractor and that it was “actually received” within 120 days. The parties filed competing motions for summary judgment on this point. The Supreme Court granted the supplier’s motion for summary judgment, but the Appellate Division reversed, finding that a factual issue existed regarding whether the notice was “actually received” within 120 days of the last labor or material furnished on the project.

The case can be found at Vulcraft of New York, Inc. v. Solvay Iron Works, Inc., 176 A.D.3d 1630 (Fourth Dept. 2019).