Construction—Performance Bond—Noncompliance With Condition Precedent Bars Damage Claim—Steinway Tower—Reportedly Fourth Tallest Building in the US And "Narrowest Skyscraper in the World"—Surety Claim Denied—Delay Damages—Plaintiff's Decision To Not Terminate The Poorly Performing Subcontractor and Comply With the Condition Precedents of the Performance bond May Have Been an "Economically Rational" Decision Since It Might Have Had a Greater Loss By Bringing On a New Contractor—However That Business Decision Cannot Excuse Failure To Comply With The "bond's Material Terms"—Plaintiff Made a Business Decision and It Had To "Live With The Legal Consequences of That Choice"

A trial court had granted the defendant insurance company's motion for summary judgment dismissing the complaint. The plaintiff had asserted a surety claim. The plaintiff appealed.

The salient issue on appeal was whether a failure to comply with the terms of a performance bond precluded the plaintiff's claims for damages. The performance bond was written on a form known as "AIA Document A312" (bond). The Appellate Division, First Dep't (court) noted that the bond, published by the American Institute of Architects, "has been described as 'one of the clearest, most definitive, and widely used type of traditional common law "performance bonds" in private construction….'"