Americon Constr. Inc. v Radu Physical Culture, LLC

Americon Constr. Inc. v Radu Physical Culture, LLC 2012 NY Slip Op 02265 Decided on March 27, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 27, 2012
Saxe, J.P., Sweeny, Catterson, Renwick, Manzanet-Daniels, JJ. 7191-
602577/09 7192

[*1]Americon Construction Inc., Plaintiff-Respondent,

v

Radu Physical Culture, LLC, et al., Defendants, Plaza Accessory Owner LP, Defendant-Appellant.




Westermann Sheehy Keenan Samaan & Aydelott, LLP,
Uniondale (Stephen J. Gillespie of counsel), for appellant.
Jaffe, Ross & Light LLP, New York (Bill S. Light of counsel),
for respondent.

Judgment, Supreme Court, New York County (Jane S. Solomon, J.), entered March 4, 2011, which, inter alia, awarded plaintiff the principal sum of $795,016.00, and bringing up for review an order, same court and Justice, entered on or about November 19, 2010, which granted plaintiff's motion for summary judgment on its cause of action seeking to foreclose on its mechanic's lien, unanimously affirmed, with costs. Appeal from the foregoing order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff established that it was entitled to foreclose on its mechanic's lien against appellant owner of the real property located within the Plaza Hotel, based on evidence that it had performed its contract and that it had not been paid for all of the work. Plaintiff also established that the work was done with Plaza's consent because it established that: 1) Plaza's lease with tenant Radu specifically contemplated the improvements; 2) Plaza specifically approved the hiring of plaintiff and the construction plans; 3) Plaza obtained work permits for the work; 4) Plaza was actively involved in the project and attended numerous job site meetings; 5) Plaza's employee e-mailed plaintiff inquiring as to what it could do to start the construction process; 6) Plaza received the benefits of the improvements since it re-entered the space (see Curtis Partitions Corp. v Halpern Constr., Inc., 43 AD3d 744 [2007]; M & B Plumbing & Heating Co. v Cammarota, 103 AD2d 879 [1984]). Appellant failed to raise any triable issues of fact to [*2]defeat plaintiff's entitlement to summary judgment.

We have considered appellant's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 27, 2012

CLERK