Inter Metal Fabricators, Inc. v HRH Constr. LLC

Inter Metal Fabricators, Inc. v HRH Constr. LLC 2012 NY Slip Op 02769 Decided on April 12, 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 April 12, 2012
Mazzarelli, J.P., Catterson, DeGrasse, Manzanet-Daniels, Román, JJ.
7355 604137/04

[*1]Inter Metal Fabricators, Inc., Plaintiff-Appellant,

v

HRH Construction LLC, et al., Defendants-Respondents. [And Other Actions]




Goldberg & Connolly, Rockville Centre (Mitchell B. Reiter of
counsel), for appellant.
Wasserman Grubin & Rogers LLP, New York (Samuel A.
Gunsburg of counsel), for HRH Construction LLC, Vesta 24,
LLC and BBL Partners, LLC, respondents.
Frenkel Lambert Weiss Weisman & Gordon, LLP, New York
(Eric M. Eusanio of counsel), for Vigilant Insurance Company,
respondent.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered December 10, 2010, which, to the extent appealed from as limited by the briefs, granted defendants HRH Construction LLC's and Vigilant Insurance Company's motions for summary judgment dismissing the second and third causes of action for foreclosure of mechanic's liens and HRH's motion for summary judgment as to liability on its counterclaim for willful exaggeration of the liens, unanimously affirmed, with costs.

Defendants demonstrated conclusively that the amount of the
lien was willfully exaggerated (see Lien Law § 39; Northe Group, Inc. v Spread NYC, LLC, 88 AD3d 557 [2011]; Strongback Corp. v N.E.D. Cambridge Ave. Dev. Corp., 25 AD3d 392, 393 [2006]). The evidence includes documents, created by plaintiff and submitted to its surety, that tend to show that plaintiff knowingly marked up its costs and expenses, as well as the testimony of plaintiff's vice president and chief operating officer admitting to the overcharges and stating that he was "entitled to mark it up to whatever number I want," and, "You know what? People [*2]do a lot of things."

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

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

ENTERED: APRIL 12, 2012

CLERK