W & W Glass, LLC v 1113 York Ave. Realty Co. LLC

W & W Glass, LLC v 1113 York Ave. Realty Co. LLC 2014 NY Slip Op 00570 Decided on January 30, 2014 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 January 30, 2014
Gonzalez, P.J., Friedman, Renwick, Freedman, Richter, JJ. 11606-
101723/09 11607

[*1]W & W Glass, LLC, Plaintiff-Appellant-Respondent,

v

1113 York Avenue Realty Company LLC, et al., Defendants-Respondents-Appellants, Pacific Lawn Sprinklers, et al., Defendants, Sota Glazing, Inc., Defendant-Respondent-Respondent.




Schnader Harrison Segal & Lewis LLP, New York (Theodore
L. Hecht of counsel), for appellant-respondent.
Rosenberg & Estis, P.C., New York (Michael E. Feinstein of
counsel), for respondents-appellants.
Rich, Intelisano & Katz, LLP, New York (Steven C. Cramer of
counsel), for respondent-respondent.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered November 14, 2012, which, to the extent appealed from, granted plaintiff's motion for summary judgment as against defendant 1113 York Avenue Realty Company LLC on its causes of action for breach of contract and account stated and awarded plaintiff damages plus pre-judgment interest at the statutory rate of 9%, denied defendants York and 60th Street Development LLC's (together, the York defendants) cross motion for summary judgment declaring that plaintiff's and defendant Sota Glazing, Inc.'s mechanic liens were void for willful exaggeration, and sub silentio denied plaintiff's motion for sanctions against the York defendants for frivolous conduct, unanimously modified, on the law, to increase the pre- and post-judgment interest rate on the award of damages to plaintiff on its account stated claims to 12% from 9%, and otherwise affirmed, without costs. Order, same court and Justice, entered March 27, 2013, which, to the extent appealed from, denied plaintiff's motion for resettlement of the November 14, 2012 order to include sanctions against the York defendants, to increase the pre- and post-judgment interest rate to 12% from 9%, to deem the York defendants jointly and severally liable for the judgment, and to provide for foreclosure against 60th Street's parcel, unanimously affirmed as to the joint and several liability and foreclosure determinations, and appeal therefrom otherwise dismissed, without costs, as academic in light of the foregoing. [*2]

Contrary to the York defendants' contention, plaintiff's and Sota's filing of duplicate liens on the total amount due on their invoices for each of two separately owned parcels that comprised a single development site did not constitute willful exaggeration of the liens (Lien Law §§ 39; 39-a). Lien Law § 4 "expressly recognizes that the sum of all liens filed may be greater than the amount remaining unpaid" (Matter of 101 Park Ave. Assoc. v Trane Co., 99 AD2d 428 [1st Dept 1984], affd 62 NY2d 734 [1984]; see also generally Matter of Niagra Venture v Sicoli & Massaro, 77 NY2d 175, 181-182 [1990]). Defendants do not contend that the amount stated in any particular lien filed against either of the parcels exceeds the value of the actual labor and equipment provided by plaintiff or Sota to the project.

The record shows that plaintiff sent monthly requisitions for payment to the York defendants, in accordance with the parties' agreement, and that the York defendants failed to timely object to the requisitions. Plaintiff is entitled to interest at the rate of 1% per month on any overdue requisition (see General Business Law §§ 756-a; 756-b).

Plaintiff argues that defendant 60th Street should have been held jointly and severally liable with York for the money judgment and that the judgment should provide for conditional foreclosure against 60th Street's parcel in the event that the York defendants' filed undertaking becomes compromised. However, the parties' agreement provides that York will be individually liable for any unpaid overdue invoices, and there is no evidence that the York defendants' filed undertaking or the value of York's parcel alone would be insufficient to satisfy the judgment
(see Lien Law § 19[4]; see generally Morton v Tucker, 145 NY 244 [1895]; Sanco Mech., Inc. v DKS Gen. Contrs. & Constr. Mgrs., Inc., 34 AD3d 271 [1st Dept 2006]).

We find no reason to disturb the court's exercise of discretion in not awarding sanctions.

We have considered the parties' remaining arguments for affirmative relief and find them unavailing.

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

ENTERED: JANUARY 30, 2014

CLERK