secured by the Bond or pay the proceeds of the Bond to the City. Continental has made no payments under the Bond and has not completed the Townhouse II public improvements.
12. Chapel Hill Development has agreed to guarantee the construction of the public improvements and recreational facilities by a bond that would be in place before construction of a phase begins. Alternatively, public improvements must be completed before a certificate of occupancy is issued, as a condition of final subdivision approval.
13. The cost to construct the Townhouse II public improvements secured by the Bond is $ 1,221,300. To date, the City has not expended any funds to construct the Townhouse II public improvements and has incurred no expenses related to the construction of such improvements. The current developers have agreed to complete the public improvements. This action was commenced on April 30, 1997.
CONCLUSIONS OF LAW
1. This Court has jurisdiction of this matter under 28 U.S.C. § 1332 because the parties are citizens of different states and the amount in controversy exceeds $ 75,000. See 28 U.S.C. § 1332.
2. The City is not barred by any statute of limitations from instituting this action for recovery under the Bond. See Mount Florence Group v. City of Peekskill, 652 N.Y.S.2d 814, 235 A.D.2d 787 (App. Div. 1997).
3. Continental's liability to the City for the Townhouse II public improvements could not exceed an amount commensurate with the extent of building development completed by Mount Florence. See New York General City Law, § 33; Town of Shawangunk v. Goldwil Properties Corp., 403 N.Y.S.2d 784, 61 A.D.2d 693 (App. Div. 1978); Town of New Windsor v. Inbro Development Corp., 448 N.Y.S.2d 99, 112 Misc. 2d 983 (Sup. Ct. 1982). Because Mount Florence completed no aspect of the development of Townhouse II that would require the completion of the public improvements covered by the Bond, Continental has incurred no liability to the City.
4. The expiration of the site plan approval upon which the Bond was based and the issuance of a superseding and materially different site plan approval to a new developer, all without Continental's knowledge or consent, extinguished the obligations of Continental as guarantor. See Varlotta Construction Corp. v. Sette-Juliano Construction Corp., 651 N.Y.S.2d 484, 234 A.D.2d 183 (App. Div. 1996); cf. Town of Poughkeepsie v. Holden Construction Co., Inc., 480 N.Y.S.2d 384, 104 A.D.2d 873 (App. Div. 1984).
5. Because the City has expended no funds to complete the Townhouse II public improvements and because the current developers have agreed to complete such improvements, Mount Florence's failure to construct the Townhouse II public improvements has caused the City no damages that would entitle it to call upon the proceeds of the Bond. See Kenford Co., Inc. v. County of Erie, 67 N.Y.2d 257, 260, 502 N.Y.S.2d 131, 132, 493 N.E.2d 234 (Ct. App. 1986); Village of Warwick v. Republic Ins. Co., 428 N.Y.S.2d 589, 104 Misc. 2d 514 (Sup. Ct. 1980); cf. Town of Poughkeepsie v. Holden Construction Co., 480 N.Y.S.2d 384, 104 A.D.2d 873 (App. Div. 1984).
For the reasons stated, plaintiff's claim is denied. The Clerk of the Court is directed to enter judgement for the defendant.
Barrington D. Parker, Jr.
Dated: White Plains, New York
April 9, 1998
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