HRH Constr., LLC v Elite Constr. of N.Y., Inc.
2007 NY Slip Op 00574 [36 AD3d 560]
January 30, 2007
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 14, 2007


HRH Construction, LLC, et al., Respondents,
v
Elite Construction of N.Y., Inc., et al., Defendants, and Centennial Insurance Company, Appellant.

—[*1] Gottesman, Wolgel, Malamy, Flynn & Weinberg, P.C., New York (Steven Weinberg of counsel), for appellant. Wasserman Grubin & Rogers, LLP, New York (Douglas J. Lutz of counsel), for respondents.

Order, Supreme Court, New York County (Herman Cahn, J.), entered January 10, 2006, which, inter alia, denied defendant Centennial Insurance Company's motion to dismiss the complaint as against it for failure to state a cause of action, unanimously affirmed, with costs.

Plaintiffs sufficiently pleaded their compliance with the conditions precedent for payment under the performance and payment bonds, and the court properly denied defendant Centennial Insurance Company's motion to dismiss the complaint for failure to state a cause of action since Centennial's evidence failed to negate the facts pleaded by plaintiffs beyond substantial question (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). Concur—Mazzarelli, J.P., Friedman, Williams, McGuire and Malone, JJ.