In an action for payment on a labor and materials payment bond issued by defendants in connection with a construction project, judgment for plaintiff is affirmed in part where the district court did not err in finding that the action was timely under the terms of the bond. However, the judgment is reversed in part where the district court improperly set off from the damages award the contractor's full cost to complete that portion of the contracted work that had not been completed by plaintiff.
Argued: December 19, 2008
Decided: October 1, 2009
Opinion by Judge Sack
Patrick M. Reilly, DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, NY