Aabco Sheet Metal Co. v. Seven West 34th Street Development Corp. , 632 N.Y.S.2d 3 ( 1995 )

—Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about May 1, 1995, which denied plaintiffs motion to amend the complaint so as to add a cause of action on the payment bond issued by defendant insurer, unanimously affirmed, without costs.

Plaintiffs claim that defendants should be estopped from asserting the 90-day notice provision in the payment bond is without merit, given no actual misrepresentation that such a bond did not exist (see, Gleason v Spota, 194 AD2d 764, 765) that lulled plaintiff into inactivity (see, Triple Cities Constr. Co. v Maryland Cas. Co., 4 NY2d 443, 448). Here, plaintiff shows at most that its inquiries concerning the bond’s existence were met only with silence, which, far from lulling plaintiff, should have alerted it to the need for more assertive measures. Concur—Sullivan, J. P., Wallach, Rubin, Ross and Nardelli, JJ.