Kaback Enters., Inc. v Austin Bros., Inc.
Annotate this CaseDecided on November 10, 2009
Supreme Court, New York County
Kaback Enterprises, Inc., Plaintiff,
against
Austin Brothers, Inc., and 250 WEST 57TH STREET ASSOCIATES, LLC, TOTAL INTERIOR, INC., WEINSTEIN & HOLTZMAN, INC., and N.J.D. WIRING & ELECTRIC, INC., Defendants.
602144/06
Plaintiff's Attorney
Stuart s. Zisholtz, Esq.
Zisholtz & Zisholtz, LLP
170 Old Country Road
Mineola, New York 11501
Defendant's Attorney
Robert A. Sternbach, Esq.
Law Office of Robert A. Sternbach
274 Madison Avenue - Suite 1304
New York, NY 10016
Debra A. James, J.
The court shall grant the motion of defendant 250 West 57th St. Associates, LLC (250 West) for summary judgment dismissing the complaint against it and seeking a judgment cancelling and discharging the mechanics liens filed by plaintiff Kaback Enterprises, Inc. against the premises at 250 West 57th Street, New York County.
Plaintiff is a subcontractor seeking payment for work done in Suites 309 and 711 at the subject premises from approximately November 2004 to March 2005. Plaintiff claims it was not paid by the general contractor Austin Brothers, Inc. ("Austin Brothers") and filed mechanic's liens against the subject premises on November 23, 2005. This court rendered a default judgment [*2]against Austin Brothers for failure to appear by Order dated February 14, 2007 (Motion Seq. No. 2).
250 West, fee owner of the premises, seeks to dismiss plaintiff's action against it and discharge the liens filed on the premises. This court denied defendant 250 West's previous motion for summary judgment, holding that 250 West had not met its burden with respect to summary adjudication of plaintiff's claims (Mot Seq. No. 3). Such disposition took place before completion of discovery in this action, which has now taken place. Therefore, as "previous extant factual issues have been obviated through intervening discovery", 250 West's motion does not run afoul of this court's rule prohibiting successive motions for summary judgment. Sansol Industries, Inc. v 345 East 56th Street Owners, Inc., 276 AD2d 370 (1st Dept 2000).
The law is that
A subcontractor's lien rests upon the theory of subrogation and is restricted to satisfaction out of whatever amount, if any, is due and unpaid from the owner to the general contractor. Central Val. Concrete Corp. v Montgomery Ward & Co., 34 AD2d 860, 861 (3d Dept 1970); Lorber v Eskof Real Estate, 21 Misc 2d 308 (Sup Ct, Queens County, 1959). [The Owner] has already paid the contract price in full and owes nothing to [the subcontractor] as of the date the mechanic's lien was filed.
Under a theory of subrogation, there is no fund to which the subcontractor's lien can attach if there is no money due to prime contractor.
The burden is on the subcontractor to establish a fund subject to his
lien, namely, money available from the owner and owing to the contractor.
Mid-Island Lumber & Supply Co., Inc. v Loening, 78 Misc 2d 27, 28 (Sup
Ct, Suffolk County, 1974).
See also Lien Law §4.
Where the owner is not a party to the contract with the general contractor, Lien Law § 3 enables a mechanic's lien if the improvement done is with the consent of the owner.
250 West argues that as the owner, plaintiff cannot foreclose its liens against it since it never affirmatively consented to the work done under the general contract, and, indeed, never even knew about the work. 250 West also contends that defendant Austin Brothers was paid in full prior to the plaintiff's liens filing and therefore the liens are unenforceable.
Assuming arguendo that 250 West consented to the improvements made by the general contractor Austin Brothers, who was hired by 250 West's subtenant Fisk Building Associates, in order to "to prevail on its motion, it must demonstrate that it had paid...[the] general contractor, in full prior to the filing [*3]of the liens." Ebert v Van-Mar Developers, Inc., 111 AD2d 495, 496 (3d Dept 1985).
In support of its contentions, 250 West annexes the affidavit of its Supervisor, as well as the affidavit of the Property Manager of its subtenant Fisk Building Associates, with whom the defendant Austin Brothers, the general contractor, contracted and for whom Austin Brothers carried out the work. The affidavit of the subtenant's Property Manager appends a copy of each and every invoice rendered by Austin Brothers, Inc. Such evidence shows that each invoice was paid in full before plaintiff filed its mechanic's liens and that no work was done in connection with the premises after the date the last and final invoice was rendered and fully paid. Such affidavit also establishes that 250 West had no involvement with, knowledge of, and gave no approval of the work performed by Austin Brothers, Inc.
In opposition, despite having had the opportunity to conduct discovery, plaintiff submits the same affidavit of its president made in response to 250 West's first motion for summary judgment. Such affidavit contends neither that plaintiff performed any work after March 25, 2005, which is well before it filed its mechanic's lien, nor that any amount became due to defendant Austin Brothers after the date of that filing. See Van Clief v Van Vechten, 130 NY 571, 577 (1892) ("If anything is due to the contractor, pursuant to the terms of the contract, when the lien is filed, it attaches to that extent. . . If nothing is due to the contractor according to the contract, when the lien is filed, but a certain amount subsequently becomes due thereunder, the lien attaches to the extent of that sum"); Ebert 111 AD2d at 496-497. Plaintiff's affidavit fails to rebut 250 West's evidence that there are no unpaid amounts due to Austin Brothers to which plaintiff's lien may attach. There is no "sum" upon which the mechanic's liens on the premises may be foreclosed.
Plaintiff's affidavit does not address, much less controvert, 250 West's proof that 250 West, as owner, never approved or consented to any of the work by the general contractor Austin Brothers or plaintiff, its subcontractor, carried out at the instance of 250 West's subtenant. The affirmation of plaintiff's attorney has no probative value in this regard. Bendik v Dybowski, 227 AD2d 228, 229 (1st Dept 1996). Thus, there is no evidence that contradicts 250 West's proof that it never knew about or consented to the improvements that its subtenant Fisk Building Associates, Fisk Building's general contractor Austin Brothers or Austin Brother's subcontractor (plaintiff Kaback Enterprises, Inc.) made to the premises.
Accordingly, it is [*4]
ORDERED and ADJUDGED that the motion of the defendant 250 West 57th St. Associates, LLC for a summary judgment against plaintiff Kaback Enterprises, Inc. is GRANTED, and the mechanic's liens of plaintiff against the property at 250 West 57th St., New York, New York shall be vacated, cancelled and discharged, and the Notice of Pendency that plaintiff filed in the Office of the New York County Clerk in connection with this action on August 17, 2006 shall be cancelled; and it is further
ORDERED that the defendant 250 West 57th St. Associates, LLC shall serve a copy of this Order with notice of entry upon the attorneys for plaintiff Kaback Enterprises, Inc. by mail within 30 days of entry and shall file proof of such service with the Clerk; and it is further
ORDERED that the action against defendant Austin Brothers, Inc. is hereby severed, and plaintiff Kaback Enterprises, Inc. shall proceed to an inquest on damages; and it is further
ORDERED that within 60 days of the entry of this Order, plaintiff Kaback Enterprises, Inc. shall serve a copy of this order with notice of entry upon defendant AUSTIN BROTHERS, Inc. at its last known address and shall file a copy of this order with proof of service thereof with the Clerk of the Part 50R (Room 158, 60 Centre Street) to arrange a date for the inquest before a Special Referee pursuant to 22 NYCRR § 202.46 ; and it is further
ORDERED that pursuant to CPLR 3215 (b) the Clerk shall enter judgment against defendant AUSTIN BROTHERS, INC., without any further application.
This is the decision and order of the court.
Dated: November 10, 2009
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
