     10-2539-cv
     MJJ Trucking, Inc. v. BD Haulers, Inc.



                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United               States Court of Appeals
 2       for the Second Circuit, held at the               Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl               Street, in the City of
 4       New York, on the 5 th day of January,              two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                GUIDO CALABRESI,
 9                ROBERT D. SACK,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       MJJ TRUCKING, LLC,
14                Plaintiff-Appellee,
15
16                    -v.-                                               10-2539-cv
17
18       FIDELITY AND DEPOSIT COMPANY OF
19       MARYLAND,
20                 Defendant-Cross Claimant-
21                 Appellant,
22
23       FRANK GILLETTE and BD HAULERS, INC.,
24                Defendants-Cross Defendants.
25       - - - - - - - - - - - - - - - - - - - -X
26
27       FOR APPELLANT:            John J. P. Krol (Geoffrey S. Pope, on the
28                                 brief), Welby, Brady & Greenblatt, LLP,
29                                 White Plains, New York.
 1
 2   FOR APPELLEE:     John J. Petriello, Levy, Ehrlich &
 3                     Petriello, New York, New York.
 4
 5        Appeal from a judgment of the United States District
 6   Court for the Eastern District of New York (Gold, M.J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 9   AND DECREED that the judgment of the district court be
10   AFFIRMED.
11
12        Fidelity and Deposit Company of Maryland (“Fidelity”)
13   appeals from a judgment of the United States District Court
14   for the Eastern District of New York (Gold, M.J.) holding
15   Fidelity liable to MJJ Trucking, LLC (“MJJ”) in the amount
16   of $255,591.00, together with interest and costs, pursuant
17   to a surety bond. We assume the parties’ familiarity with
18   the underlying facts, the procedural history, and the issues
19   presented for review.
20
21        We review the district court’s legal conclusions de
22   novo, but we defer to its underlying factual findings unless
23   they are clearly erroneous. See Arch Ins. Co. v. Precision
24   Stone, Inc., 584 F.3d 33, 38-39 (2d Cir. 2009).
25
26        New York State Finance Law § 137 provides that, for any
27   “contract for the prosecution of a public improvement for .
28   . . a municipal corporation,” a condition to the approval of
29   such contract is “a bond guaranteeing prompt payment of
30   moneys due to all persons furnishing labor or materials to
31   the contractor or any subcontractors in the prosecution of
32   the work provided for in such contract.” N.Y. State Fin. L.
33   § 137(1). Section 137 provides a private right of action to
34   subcontractors and suppliers on public improvement projects
35   who are not promptly paid by the hiring contractor so long
36   as the subcontractors provide timely written notice to the
37   general contractor “stating with substantial accuracy the
38   amount claimed and the name of the party to whom the
39   material was furnished or for whom the labor was performed.”
40   Id. § 137(3).
41
42        The district court held that by presenting the general
43   contractor with unpaid invoices, MJJ, a sub-subcontractor,
44   satisfied the notice requirement in § 137(3) because the
45   invoices stated with “substantial accuracy” the amount owed
46   to MJJ and “the name of the party . . . for whom the labor
47   was performed.” Id. We agree. Fidelity’s arguments

                                  2
 1   notwithstanding, nothing in § 137(3) requires that the
 2   written notice explicitly state that the subcontractor is
 3   making a bond claim. See Am. Bldg. Contractors Assocs., LLC
 4   v. Mica & Wood Creations, LLC, 804 N.Y.S.2d 109, 110 (2d
 5   Dep’t 2005) (reversing grant of summary judgment in favor of
 6   surety and holding that § 137(3) “does not specifically
 7   require that a notice refer to a bond claim”). Indeed, the
 8   primary purpose of § 137(3) is to benefit and to protect
 9   subcontractors and suppliers. See Spanos Painting
10   Contractors, Inc. v. Union Bldg. & Constr. Corp., 334 F.2d
11   457, 459 (2d Cir. 1964); Quantum Corporate Funding, Ltd. v.
12   Westway Indus., Inc., 4 N.Y.3d 211, 216 (2005). The
13   district court correctly determined that MJJ complied with
14   the written notice requirements set forth in § 137(3) and is
15   therefore entitled to payment for services rendered.
16
17        We share the district court’s observation that
18   relatively little New York case law exists interpreting
19   § 137(3)’s notice requirement and that it may be beneficial
20   to permit the New York Court of Appeals to provide guidance.
21   However, on these particular facts and based on Fidelity’s
22   concession that MJJ’s delivery of the unpaid invoices to the
23   general contractor’s office satisfied the delivery
24   requirement set forth in New York State Finance Law
25   § 137(3), any reasonable notice requirements were met here.
26
27
28        Having considered all the arguments raised on appeal,
29   the judgment of the district court is AFFIRMED.
30
31
32                              FOR THE COURT:
33                              CATHERINE O’HAGAN WOLFE, CLERK
34




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