Northe Group, Inc., Plaintiff–Appellant, v. NYC LLC

Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

Northe Group, Inc., Plaintiff–Appellant, v. Spread NYC, LLC, Defendant–Respondent, Wah Kok Realty Corp., et al., Defendants.

5789N

Decided: October 20, 2011

Gonzalez, P.J., Mazzarelli, Sweeny, Abdus–Salaam, Román, JJ. George Sitaras, New York, for appellant. Sanders, Ortoli, Vaughn–Flam, Rosenstadt LLP, New York (Jeremy B. Kaplan of counsel), for respondent.

_

Order and judgment (one paper), Supreme Court, New York County (Jane S. Solomon, J.), entered July 9, 2010, inter alia, declaring plaintiff's mechanic's lien void, unanimously affirmed, with costs.

In accordance with the standards for summary judgment, a claim under Lien Law § 39 is subject to summary disposition where, as here, the evidence that the amount of the lien was wilfully exaggerated is conclusive (see Strongback Corp. v N.E.D. Cambridge Ave. Dev. Corp., 25 AD3d 392, 393 [2006] ).   The documentary evidence, including plaintiff's invoices (which identify plaintiff as the “construction manager”) and the parties' written agreement, demonstrates conclusively that plaintiff was acting under the written agreement as a construction manager (and therefore prohibited from marking up contractor services), not, as it argues, overseeing work under an

alleged, contemporaneous oral agreement as a general contractor (with the unrestricted right to impose markups).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

_

CLERK