I.

At issue is payment for deliveries made to a public improvement project involving additions and alterations to Broome County courts. Northland Associates, Inc., as general contractor, hired Klimchuck & Company, Inc. for a portion of the work. Klimchuck in turn arranged for the supply of materials by Specialty Products on an open account basis. Under the open account arrangement, Klimchuck placed a separate purchase order for each materials request and the supplier submitted a separate invoice for each corresponding delivery.

At Klimchuck's request, Specialty Products periodically delivered supplies, including eight separately invoiced deliveries made between October 15 and December 17, 1998, totaling $48,578.34.[1] On March 29, 1999, the supplier notified Northland that it had not been paid.

Consistent with State Finance Law § 137, St. Paul Fire & Marine Insurance Company issued a payment bond on behalf of Northland and in favor of Broome County, as obligee, to secure payment for labor and materials provided to the project. After notifying Northland of the amounts owed, Specialty Products delivered a notice of claim to Northland and the Broome County Commissioners, and filed a proof of claim with St. Paul. The supplier then filed suit against St. Paul under the payment bond for the outstanding amounts. Northland later paid the supplier $12,780.43, the amount owed for materials furnished within 120 days following the March 29, 1999 notice, but refused to pay the balance. The parties cross-moved for summary judgment, contesting whether the supplier had provided timely notice under the State Finance Law for the remaining $35,797.91 relating to earlier deliveries.

Supreme Court granted St. Paul summary judgment and dismissed the complaint. The court interpreted the 120-day notice requirement of State Finance Law § 137(3) to apply separately to each delivery, ruling that each invoice constituted a separate contract between the subcontractor and the supplier. The Appellate Division reversed and granted Specialty Products partial summary judgment, dismissing St. Paul's affirmative defense related to timeliness of the notice. The court rejected the trial court's contract-based analysis, looking instead to decisions construing a similar provision in the Federal Miller Act (40 USC § 270a, et seq.) and requiring notice of a claim within 120 days after final delivery. On remittal, Supreme Court granted Specialty Products summary judgment and entered a judgment in the amount of $35,797.91. This Court granted leave to appeal, and we now affirm.

II.

Section 137 of the State Finance Law protects the rights of persons furnishing labor or materials to contractors or subcontractors on a public improvement project to receive payment by requiring the posting of a payment bond. The statute provides laborers and material suppliers with a right to sue directly on the bond for amounts not paid by the contractor or subcontractor, as follows:

"Every person who has furnished labor or material, to the contractor or to a subcontractor of the contractor, in the prosecution of the work provided for in the contract [for a State public improvement] and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was performed or material was furnished by him for which the claim is made, shall have the right to sue on such payment bond in his own name for the amount, or the balance thereof, unpaid at the time of commencement of the action * * * ."

(State Finance Law § 137[3]). Laborers and material suppliers who work for a subcontractor -- rather than directly for the general contractor -- are also permitted to assert claims under the payment bond but first must give the general contractor notice of their claim. Section 137(3) requires that

"a person having a direct contractual relationship with a subcontractor of the contractor furnishing the payment bond but no contractual relationship express or implied with such contractor shall not have a right of action upon the bond unless he shall have given written notice to such contractor within one hundred twenty days from the date on which the last of the labor was performed or the last of the material was furnished, for which his claim is made * * * " (emphasis added).

The statute strongly resembles its model, the Federal Miller Act (40 USC § 270a, et seq.), both with the same remedial purpose. In particular, since 1935 the Miller Act has contained a parallel notice provision but requires that notice be given within 90 rather than 120 days after the date the last of the material was supplied or labor furnished ( compare State Finance Law § 137[3] with 40 USC §  270b[a]).

The similarity between the two laws did not always exist. As originally enacted in 1938, the State Finance Law contained more rigorous preconditions for a laborer or material supplier seeking to recover under a payment bond. The statute required suppliers first to file and enforce mechanics' liens under the Lien Law, and laborers to file and enforce either mechanics' liens or claims for unpaid wages under the Labor Law ( see L 1938, ch 707).

In 1964, at the recommendation of the Law Revision Commission, the State Finance Law was amended to more closely follow the Federal statute. In particular, the pre-suit conditions were amended to permit a laborer or material supplier to sue on the performance bond for unpaid amounts -- without first exhausting Lien Law and Labor Law remedies -- starting 90 days after the last of the labor was performed or material furnished. A person who had no direct contractual relationship with the contractor was required to provide written notice of a claim within 90 days from the date on which the last of the labor was performed, or the last of the material was furnished, for which the claim is made (L 1964, ch 700).[2]

The Law Revision Commission encouraged the adoption of the modern section 137(3) procedures because, in its view, the prior statutory scheme provided only limited assurance of prompt payment to laborers and suppliers. The Commission observed that in New York a payment bond claim served as a "remedy of last resort" after other sources of recovery were exhausted or shown to be futile, and the Lien Law limitations period indirectly barred claims later asserted against a payment bond ( see 1963 Report of NY Law Rev Commn, at 101).[3]

The 1964 bill received wide support. The Department of Audit and Control noted that the amendments would lessen the hardships for laborers and material suppliers caused by the delays often occurring under the old procedures (Letter from State Dept of Audit Control, April 20, 1964, Bill Jacket, L 1964, ch 700). The Department of Public Works also supported the bill on the ground that the simplified procedures would benefit laborers and material suppliers working on State construction projects (Letter from State Dept of Public Works, March 18, 1964, Bill Jacket, L 1964, ch 700). The Association of Casualty and Surety Companies, writing in support of the bill, described the prior procedures as "substantially unique to New York" and "unusual and cumbersome" for beneficiaries of payment bonds (Letter of Assoc of Casualty and Surety Companies, April 20, 1964, Bill Jacket, L 1964, ch 700). A 1980 amendment extended the notification period from 90 to 120 days (L 1980, ch 360).

III.

Against this statutory background we turn to the issue at hand: Is the statutory notice period in an open account arrangement triggered by each separate invoice or by final delivery? We note that cogent arguments can be mustered for -- and against -- both interpretations of the statute, as reflected in the division between the courts below as well as among State and Federal courts throughout the nation. What is most important is that there be clarity and certainty as to what the statute requires. In our view, the better interpretation is that the statutory notice period is triggered by the final delivery for which the claim is made.

That interpretation seems a better fit with the words of the statute, which provides that notice must be given within 120 days from the "date on which the last of the labor was performed or the last of the material was furnished, for which [a laborer or material supplier's] claim is made."[4] That is especially so when the words of the statute are considered alongside the legislative objective: to remove unnecessary obstacles and promote prompt payment to laborers and material suppliers. While St. Paul argues for a contract-based construction because the notice provision was also intended to assist contractors in investigating claims and withholding funds to pay those claims, it is clear that the Legislature adopted the current procedures to loosen the preconditions to suit under payment bonds.[5] The surety's reading would unduly burden suppliers using open accounts, requiring them to give separate notice even for a large volume of invoices, sometimes -- as in the present case -- for as little as $43.55 and $23.17.

While St. Paul argues that our rule will result in the revival of otherwise stale claims each time a new order is placed, we expect that few suppliers -- whatever their contractual arrangement -- will continue to provide materials for extended periods of time without payment. Moreover, prudent suppliers will take measures to keep their claims from lapsing by periodically notifying contractors about outstanding invoices when it is uncertain whether future orders will be placed.

We note that this is also the conclusion reached by most Federal courts considering this same issue under the Miller Act.[6] Their conclusion, like ours, is that fixing a final liability date for general contractors was secondary to the protection of laborers and material suppliers ( see e.g. Noland, 273 F2d at 920-921).

Finally, St. Paul argues that Haun Welding Supply v National Union Fire Insurance Co. of Pittsburgh, Pa. (222 2 1099 [4th Dept 1995]) and New York Plumbers' Specialities Co. v Barney Corp. (52 2 832 [1st Dept 1976]) appear to reach a contrary result. Because those cases involve private bond terms, not statutory notice requirements, we have no occasion to consider the continued viability of those holdings.

Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.