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3d 703
does not provide "`labor and materials' as the terms are used in the language of
the Bonds." Id. at *3.
2
Tri-State appealed, and on July 9, 2002, this court certified the following
question to the New York Court of Appeals:
Tri-State Employment Services, Inc. v. Mountbatten Sur. Co., Inc., 295 F.3d
256, 269 (2d Cir.2002). On April 1, 2003, the New York Court of Appeals
answered the certified question as follows:
Tri-State Employment Servs., Inc. v. The Mountbatten Sur. Co., Inc., 99 N.Y.2d
476, 486, 758 N.Y.S.2d 595, 602, 788 N.E.2d 1023, 1030, Slip Op. 12563,
2003 WL 1700061 at *11 (2003). The Court of Appeals expressly decided that
"as a matter of law [the plaintiff] was not a provider of labor to the project," and
therefore that the plaintiff could not prosecute a claim under the surety bond at
issue. Id. at *10, 99 N.Y.2d at 484, 758 N.Y.S.2d at 599, 788 N.E.2d at 1027.
We have considered all of the plaintiff's arguments and find them unavailing.
Accordingly, we AFFIRM the district court's grant of summary judgment to the
defendant, for the reasons stated by the New York Court of Appeals.
Notes:
*
The Honorable Carol B. Amon, United States District Judge for the Eastern
District of New York, sitting by designation