York Concrete Corp. v. Northwood Projects, Inc. , 57 A.D.2d 950 ( 1977 )

In an action by a subcontractor to recover the balance due under a certain contract and to enforce the terms of a payment and performance bond, the surety appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Suffolk County, entered September 24, 1976, as, after a nonjury trial, is in favor of plaintiff-respondent and against it. Judgment affirmed insofar as appealed from, with costs. The key provision in the bond is the requirement that no action may be brought "[ajfter the expiration of one (1) year following the date on which the F.H.A. Chief Underwriter signs the final project inspection report”. The sole testimony adduced at the trial on this point was that of an officer of the corporate owner of the project. He testified to the effect that no such final report had been signed. In an appropriate exercise of the trial court’s discretion, appellant was granted two continuances to permit it to produce a witness or documents to rebut this testimony, but it failed to do so. Under these circumstances, the judgment was based upon the evidence adduced and must be affirmed. We have examined appellant’s remaining contentions and find them to be without merit. Cohalan, J. P., Damiani, Rabin and Titone, JJ., concur.