AJ CONTRACTING COMPANY INC v. FARMORE REALTY INC (2008)

Judgment, Supreme Court, New York County (Louis B. York, J.), entered December 15, 2006, after a nonjury trial, in an action to foreclose a mechanic's lien, in favor of plaintiff-respondent and against intervenors-defendants-appellants and defendant-appellant surety company, unanimously modified, on the law, to vacate so much thereof as holds intervenors directly liable to plaintiff-respondent, the judgment is deemed paid in full, and otherwise affirmed, with costs in favor of intervenors payable by plaintiff-respondent.

 There is no evidence of exaggeration, much less that any exaggeration was willful, warranting a declaration under Lien Law § 39 that plaintiff's mechanic's lien is void (cf. Strongback Corp. v. N.E.D. Cambridge Ave. Dev. Corp., 25 A.D.3d 392, 808 N.Y.S.2d 654 [2006] ).  We modify only insofar as the judgment holds intervenors directly liable to plaintiff in quasi-contract.  We reject the trial court's finding that intervenors formally admitted that they benefitted from plaintiff's work, and, even if we were to assume, although hardly clear, that intervenors did so benefit, it remains that plaintiff's services were rendered not at intervenors' behest but at the behest of their assignor.  Thus, plaintiff cannot recover against intervenors in quantum meruit (see Kagan v. K–Tel Entertainment, 172 A.D.2d 375, 377, 568 N.Y.S.2d 756 [1991], quoting Langel v. Betz, 250 N.Y. 159, 161–162, 164 N.E. 890 [1928];  Prestige Caterers v. Kaufman, 290 A.D.2d 295, 295–296, 736 N.Y.S.2d 335 [2002] ).  We have considered appellants' other contentions and find them unavailing.