KNR CONSTRUCTION LLC v. The J. Pilla Group Ltd. et al., Defendants–Respondents. (2024)

Order, Supreme Court, Bronx County (Andrew Cohen, J.), entered on or about April 18, 2023, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment against defendant Arch Insurance Company for the amount asserted in connection with a lien discharge bond, unanimously affirmed, without costs.

To enforce its mechanic's lien as a surety, plaintiff was required to make a prima facie case the lien was valid, and that it was entitled to the amount asserted.  Plaintiff did not adduce sufficient evidence to establish prima facie entitlement to summary judgment, as its evidence failed to establish the work performed and that it was entitled to the amount asserted in the lien, i.e., $74,872.21 (see Ruckle & Guarino, Inc. v. Hangan, 49 A.D.3d 267, 267–268, 852 N.Y.S.2d 122 [1st Dept. 2008];  Varlotta Constr. Corp. v. Sette–Juliano Constr. Corp., 234 A.D.2d 183, 183, 651 N.Y.S.2d 484 [1st Dept. 1996]).  The default of sub-contractor, defendant Epiphany Construction Services, Ltd., who retained plaintiff as a sub-sub-contractor, does not relieve plaintiff of its burden against nondefaulting parties (see Firedoor Corp. of Am. v. Merlin Indus., 86 A.D.2d 577, 577, 446 N.Y.S.2d 325 [1st Dept. 1982];  see also Holt v. Holt, 262 A.D.2d 530, 530–531, 692 N.Y.S.2d 451 [2d Dept. 1999]).

We have considered plaintiff's remaining arguments and find them unavailing.