
    Don Diesel, Inc., Appellant, v Colonial Surety Company et al., Respondents.
    [778 NYS2d 604]
   Appeal from an order of the Supreme Court, Steuben County (Peter C. Bradstreet, A.J.), entered February 11, 2003. The order denied plaintiffs motion for summary judgment and granted the cross motion of defendant Colonial Surety Company for leave to serve an amended answer.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking sums due on a subcontract with defendant Dave Staviski, doing business as Chemung Valley Acoustical & Partition, who claimed an inability to pay plaintiff because he had not been paid by either the general contractor, who declared bankruptcy, or the surety, defendant Colonial Surety Company (Colonial). Supreme Court properly denied plaintiffs motion for summary judgment. By its order denying plaintiffs motion, the court also granted the cross motion of Colonial for leave to serve an amended answer incorporating information received from the general contractor subsequent to the time of Colonial’s original answer. According to Colonial’s amended answer and the affidavit of the general contractor’s president and chief executive officer submitted by Colonial in opposition to plaintiff’s motion, the failure of plaintiff to complete its work in a timely manner resulted in backcharges owed by the general contractor to the subcontractors, and thus there is an issue of fact with respect to the amount, if any, owed to plaintiff. We thus conclude that plaintiff has not established its entitlement to judgment as a matter of law at this juncture (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Present—Hurlbutt, J.P., Scudder, Gorski, Martoche and Hayes, JJ.  