Plaintiff, West-Fair Electric Contractors ("West-Fair"), is a New York corporation with its principal place of business in Hawthorne, New York, in this district. Plaintiff L.J. Coppola, Inc. ("Coppola"), is a New York corporation with its principal place of business in Brandon, New York.
Defendants are the Gilbane Building Company ("Gilbane") and the Aetna Casualty & Surety Company ("Aetna"). Gilbane is a Rhode Island corporation with its principal place of business in Providence, Rhode Island. Aetna, a company duly authorized to act as a surety in the State of New York, is a Connecticut corporation with its principal place of business in Hartford, Connecticut.
Aetna, as surety for Gilbane, signed and executed a performance bond and a labor and materials bond on May 28, 1992, in the sum of $ 13,845.73, guaranteeing prompt payment of moneys due to all persons furnishing the principal with labor and material for the construction of the Westchester Pavilion Project at White Plains, New York ("The Project"). This bond was paid for by Gilbane.
On December 28, 1992, West-Fair and Gilbane entered into a contract for $ [ILLEGIBLE NUMBERS] for West-Fair, as a subcontractor to furnish and install electrical work at the Project. On or about January 5, 1993, Coppola and Gilbane entered into a contract for $ 205,705 for Coppola, as a subcontractor to furnish and install mechanical and plumbing work at the Project. Thereafter, these subcontractors were authorized to perform extra work amounting to $ 1,247,548 and $ 378,204 respectively.
Gilbane paid West-Fair $ 1,212,250 and Coppola $ 401,713. These payments represented all sums received by Gilbane from the Project Owner, Fischer-Reese White Plains Associates, L.P. ("Fischer-Reese") on account of the work done through October, 1993 when Gilbane received its last payment from Fischer-Reese. The subcontracts each contain the following clause (hereinafter, "the clause in § 3.2):
It is specifically understood and agreed that the payment to the trade contractor is dependent, as a condition precedent, upon the construction manager receiving contract payments, including retainer from the owner . . .