FURNARI v. RUTIGLIANO

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

Paul FURNARI, et al., Appellants, v. George RUTIGLIANO, et al., Respondents.

Decided: December 29, 1997

Before ALTMAN, J.P., and FRIEDMANN, KRAUSMAN and McGINITY, JJ. Jeffrey B. Hulse, Ronkonkoma, for appellants. Craig A. Eaton, Brooklyn, for respondents.

In an action, inter alia, to foreclose a mechanic's lien, the plaintiffs appeal from so much of an order of Supreme Court, Nassau County (De Maro, J.), entered July 11, 1996, as granted that branch of the motion of the defendants which was for summary judgment dismissing the complaint insofar as asserted against the individual defendants George Rutigliano and Francis Rutigliano.

ORDERED that the order is modified, on the law, by deleting the provision thereof which granted that branch of the defendants' motion which was for summary judgment dismissing the first cause of action as against the individual defendants and substituting therefor a provision denying that branch of the defendants' motion;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court improperly granted summary judgment to the individual defendants dismissing the first cause of action in the complaint inasmuch as the plaintiffs have raised triable issues of fact as to whether the labor and materials they provided for the improvement of the individual defendants' home were supplied with the consent or at the request of the individual defendants (see, CPLR 3212[b] ).  If the individual defendants requested or consented to the provision of the labor and materials in question the plaintiffs could properly file a mechanic's lien for the amount due or payable (see, Lien Law § 3).

MEMORANDUM BY THE COURT.

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