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Kleinberg Electric, Inc v. Travelers Casualty and Surety Company of America

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS Appellate Term, Second Department


December 23, 2011

KLEINBERG ELECTRIC, INC.,
RESPONDENT,
v.
TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA,
APPELLANT.

Appeals from orders of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered February 16, 2010 and May 7, 2010, respectively.

Kleinberg Elec., Inc. v Travelers Cas. & Sur. Co. of Am.

Decided on December 23, 2011

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ

The order entered February 16, 2010, insofar as appealed from, granted plaintiff's motion for, among other things, summary judgment to the extent of granting plaintiff partial summary judgment in the principal sum of $33,063.47. The order entered May 7, 2010, insofar as appealed from, (1) upon, in effect, granting defendant's motion for leave to reargue its opposition to plaintiff's prior motion, adhered to the prior determination, and (2) denied defendant's separate motion for summary judgment.

ORDERED that the appeal from the order entered February 16, 2010 is dismissed, as this order was superseded by the order entered May 7, 2010; and it is further,

ORDERED that the order entered May 7, 2010, insofar as appealed from, is affirmed, without costs.

Plaintiff commenced this action in Supreme Court, New York County, to recover for work it performed pursuant to a public works subcontract, payment for which was insured by a bond issued by defendant. In March 2007, the Supreme Court transferred the action to the Civil Court, New York County, pursuant to CPLR 325 (d). By order dated September 24, 2008, a motion by defendant to transfer the action to the Civil Court, Richmond County, was granted on consent. By order entered February 16, 2010, the Civil Court granted a motion by plaintiff to the extent of granting plaintiff partial summary judgment. Subsequently, defendant moved for leave to reargue its opposition to plaintiff's prior motion and separately moved for summary judgment on its affirmative defenses of improper venue and expiration of the contractual limitations period. By order entered May 7, 2010, the Civil Court, in effect, granted defendant leave to reargue and, upon reargument, adhered to its prior decision, and denied defendant's motion for summary judgment.

Defendant's contention that, by commencing suit in New York County, plaintiff failed to comply with the bond's forum selection clause, is without merit. We note that defendant initially moved to transfer the action to Richmond County, and not to dismiss the complaint, which motion was granted on consent. Moreover, as the contractual forum was another county within the State, not a foreign jurisdiction (see e.g. Tatko Stone Prods., Inc. v Davis-Giovinzazzo Constr. Co., 65 AD3d 778, 779 [2009]), the transfer to that county, rather than dismissal, was, in any event, the appropriate remedy (see CPLR 501, 510, 511; Trump v Deutsche Bank Trust Co. Ams., 65 AD3d 1329 [2009]; B & H Interior Contr. Inc. v Yonkers Contr. Co., 234 AD2d 44 [1996]).

We further note that the transfer to Richmond County did not effect a re-commencement of the suit (see CPLR 511 [d]). Consequently, as the action was filed within one year of the day plaintiff last performed work on the project, it was timely commenced under the one-year limitations period set forth in the bond.

Pesce, P.J., Weston and Steinhardt, JJ., concur.

Decision Date: December 23, 2011

20111223

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