—[*1] Welby, Brady & Greenblatt, LLP, White Plains (Geoffrey S. Pope of counsel), for appellants.

Cary Scott Goldinger, Garden City, for respondents.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about October 17, 2008, which, inter alia, denied the motion by SRM Construction Corporation, Fireman's Fund Insurance, Fidelity Guarantee Insurance Company and The American Insurance Co. for summary judgment dismissing plaintiffs' claims against the payment bonds, unanimously affirmed, with costs.

In view of the conflicting assertions as to the state of discovery, we cannot say that the surety defendants have established their statute of limitations defense as a matter of law. Concur—Friedman, J.P., Sweeny, Nardelli and Freedman, JJ.