Bernardo v. P. J. Carlin Construction Co. , 58 A.D.2d 638 ( 1977 )

— In an action to recover the value of work, labor and srvices performed, plaintiff appeals from: (1) an order of the Supreme Court, Kings County, dated September 28, 1976, which granted the motion of defendants P. J. Carlin Construction Co. and Atlas Tile & Marble Works, Inc., a joint venture, and of the Aetna Casualty and Surety Company, for summary judgment; and (2) the judgment entered thereon October 13, 1976. Order and judgment reversed, on the law, with one bill of $50 costs and disbursements to cover both appeals, and motion for summary judgment denied. A review of the record on this appeal indicates that there may be a triable issue of fact as to whether Isaacson Steel Erectors, Inc., the bankrupt herein, was hired directly by Carlin and Atlas, an issue which the trustee in bankruptcy should be permitted to explore (see CPLR 3212, subd [f]). Also, the record is ambiguous as to the full extent of the obligation of Aetna, as surety, since it is unclear whether there was more than one bond, the terms of which may differ. Under the circumstances, the granting of summary judgment in favor of Aetna was also unwarranted. Latham, J. P., Shapiro, Hawkins and Suozzi, JJ., concur.