Atlantic Line Constr., LLC v Marstan Dev. Corp.

Atlantic Line Constr., LLC v Marstan Dev. Corp. 2011 NY Slip Op 08822 Decided on December 8, 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 December 8, 2011
Tom, J.P., Moskowitz, Richter, Abdus-Salaam, Román, JJ.
6250 602173/09

[*1]Atlantic Line Construction, LLC, Plaintiff, ——

v

Marstan Development Corp., et al., Defendants-Appellants, AB Design Build Corp., et al., Defendants, Argyle Development LLC, Defendant-Respondent.




Jeremy Rosenberg, New York, for appellants.
Mattar, D'Agostino & Gottlieb, LLP, Buffalo (Jonathan
Schapp of counsel), for respondent.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered August 6, 2010, which granted defendant Argyle Development LLC's motion for summary judgment on its cross claim against defendant Marstan Development Corp., unanimously affirmed, with costs.

Marstan's allegation that the "Affidavit and Waiver of Lien" was fraudulently procured by an unfulfilled promise on Argyle's part to pay the last of three invoices in full, as opposed to partial payment and a draw-down on previously advanced funds, is unsupported in the record (see Grullon v City of New York, 297 AD2d 261, 263 [2002]). Contrary to Marstan's contention that previous invoices were paid in full by check, the documentary evidence demonstrates that each of Marstan's two previous invoices was paid by a combination of direct payment — either by check or wire transfer — and a reduction in the "float balance" — a sum advanced by Argyle to Marstan early in the construction project, from which Marstan was permitted to draw down amounts authorized by Argyle.

On June 9, 2009, Argyle informed Marstan by e-mail that it would pay the third invoice, for $55,170, by a wire transfer of $20,170 — a transfer that Argyle undisputedly made — and a $35,000 reduction in the float balance. Marstan alleges that, before sending the e-mail, a representative of Argyle promised that Argyle would send the full $55,170 by wire later in the day and requested that Marstan execute and forward the affidavit and waiver in the interim. Marstan claims that this promise induced it to execute the affidavit and waiver. However, upon receiving the wire transfer and the e-mail instructing it to deduct the remaining $35,000 from the float balance, Marstan made no objection. Nor has it controverted the assertion that the float balance existed, or that more than sufficient funds remained in it to draw down the $35,000. Moreover, Marstan submitted no evidence that payment by this method was somehow [*2]insufficient, so as to raise the inference that it relied (a fraud claim requisite) on the alleged representation that Argyle would wire the full $55,170 (see Small v Lorillard Tobacco Co., 94 NY2d 43,
57 [1999]).

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

ENTERED: DECEMBER 8, 2011

CLERK