Justice Barry Ostrager

Contractor Universal Construction Resources (UCR) and its surety General Casualty (GC) moved for summary judgment dismissing claims against them. Maine Service Corp. (MSC) sued to recover monies allegedly due for materials provided to KD in connection with public improvement projects. UCR obtained payment bonds from GC, and entered into two contracts with subcontractor KD. MSC requested UCR issue 2-party checks payable to KD and MSC in payment of monies UCR owed KD as KD was allegedly not paying MSC. MSC asserted four causes of action against defendants, including to recover nearly $44,000 against UCR and GC for sums KD failed to pay MSC. Defendants moved for dismissal arguing the claims for monies under the payment bonds were barred by MSC's failure to serve notice required by State Finance Law §137(3). MSC's counsel conceded it did not provide notice—a condition precedent to suit on a payment bond—, but argued §137(3) was satisfied when MSC requested, and UCR issued, checks payable to MSC and KD. The court rejected such argument, finding no support in the statute's language as the 2-party checks could not be deemed to constitute notice. The motion was granted and claims against UCR and GC dismissed.