MATROS AUTOMATED ELECTRICAL CONST CORP v. Nastasi White, Inc., et al., Defendants. (2007)

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered November 28, 2005, which, to the extent appealed from, denied plaintiffs' motion to certify this as a class action and granted the cross motion of defendants 230 Park Investors and Tokio Marine Management for summary judgment dismissing the third, sixth, ninth and twelfth causes of action and cancelling plaintiffs' mechanic's liens, unanimously affirmed, with costs.

 Defendants made a prima facie showing that no funds were due and owing from the building owner to the general contractor at the time of the filing of the liens (see Lien Law § 4[1];  Albert J. Bunce, Ltd. v. Fahey, 73 A.D.2d 632, 423 N.Y.S.2d 58 [1979] ), and plaintiffs failed to raise any issues of fact in opposition.   Under the circumstances, notwithstanding its principal's apparent assertion to the contrary, the general contractor was intended to be just that, though also a tenant whose premises were the subject of its work under its lease (see McNulty Bros. v. Offerman, 221 N.Y. 98, 116 N.E. 775 [1917] ).

 The court properly denied the motion for class certification, which was untimely (see Shah v. Wilco Sys., Inc., 27 A.D.3d 169, 173, 806 N.Y.S.2d 553 [2005], lv. dismissed in part & denied in part 7 N.Y.3d 859, 824 N.Y.S.2d 597, 857 N.E.2d 1129 [2006] ).   In any event, the court properly exercised its discretion (see Lien Law § 77[1];  Rabouin v. Metropolitan Life Ins. Co., 25 A.D.3d 349, 350, 806 N.Y.S.2d 584 [2006] ) in denying class action certification in the absence of merit to the underlying claims (cf. Simon v. Cunard Line, 75 A.D.2d 283, 288, 428 N.Y.S.2d 952 [1980] ), and in light of the failure to set forth evidentiary facts to support such request (see Nachbaur v. American Tr. Ins. Co., 300 A.D.2d 74, 75, 752 N.Y.S.2d 605 [2002], lv. dismissed 99 N.Y.2d 576, 755 N.Y.S.2d 709, 785 N.E.2d 730 [2003], cert. denied sub nom. Moore v. American Tr. Ins. Co., 538 U.S. 987, 123 S.Ct. 1801, 155 L.Ed.2d 682 [2003] ), and in light of the predominance of individual issues.