Northe Group, Inc. v Spread NYC, LLC

Northe Group, Inc. v Spread NYC, LLC 2011 NY Slip Op 07363 Decided on October 20, 2011 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 October 20, 2011
Gonzalez, P.J., Mazzarelli, Sweeny, Abdus-Salaam, Román, JJ.
5789N 600068/10

[*1]Northe Group, Inc., Plaintiff-Appellant,

v

Spread NYC, LLC, Defendant-Respondent, Wah Kok Realty Corp., et al., Defendants.




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.

ENTERED: OCTOBER 20, 2011

CLERK