Matter of Able Rigging Contrs., Inc. v Gemini Mach. Works, Inc.

Matter of Able Rigging Contrs., Inc. v Gemini Mach. Works, Inc. 2021 NY Slip Op 07495 Decided on December 28, 2021 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 and Entered: December 28, 2021
Before: Webber, J.P., Mazzarelli, Gesmer, González, Rodriguez, JJ.
Index No. 161780/19 Appeal No. 14938-14939-14939A Case No. 2020-04267, 2020-04284, 2021-00314

[*1]In the Matter of Able Rigging Contractors, Inc., Petitioner-Appellant,

v

Gemini Machine Works, Inc., Respondent-Respondent.

Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Karen H. Tommer of counsel), for appellant.

Orders, Supreme Court, New York County (Eileen A. Rakower, J.), entered August 6, 2020 and January 22, 2021, which denied the petition to vacate respondent's demand for a verified statement pursuant to Lien Law § 76(1) and directed petitioner to produce the verified statement, unanimously reversed, on the law, without costs, and the matter remanded for further proceedings in accordance herewith. Appeal from order, same court and Justice, entered September 28, 2020, which denied petitioner's motion for reargument, unanimously dismissed, without costs, as taken from a nonappealable order.

Lien Law § 76(1) entitles "[a]ny beneficiary of the trust holding a trust claim" to either examine the contents of the trustee's books or records or obtain a verified statement of the books or records. The court erred in denying the petition without determining whether respondent is a beneficiary under the statute (see Innovative Drywall v Crown Plastering Corp., 224 AD2d 664, 664 [2d Dept 1996], lv dismissed 88 NY2d 1016 [1996]). Accordingly, we remand the matter for consideration of that issue.

No appeal lies from the denial of a motion for reargument (CURE [Citizens United Reciprocal Exch.] v Mian, 195 AD3d 564 [1st Dept 2021]). THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: December 28, 2021