Sheng Sheng Constr., Inc. v Har's Constr., Inc.

Sheng Sheng Constr., Inc. v Har's Constr., Inc. 2014 NY Slip Op 02922 Decided on April 30, 2014 Appellate Division, Second 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 April 30, 2014
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
PLUMMER E. LOTT
COLLEEN D. DUFFY, JJ.
2013-07709
(Index No. 29227/10)

[*1]Sheng Sheng Construction, Inc., appellant,

v

Har's Construction, Inc., defendant, H.L.C. 139, LLC, respondent; Albert O. Grant II, nonparty-appellant.




Albert O. Grant II, New York, N.Y. (Louis A. Badolato of counsel),
nonparty-appellant pro se and for appellant.
Kevin Kerveng Tung, P.C., Flushing, N.Y. (Kenji Fukuda of
counsel), for respondent.


DECISION & ORDER

In an action to foreclose a mechanic's lien and to recover damages for breach of contract, the plaintiff Sheng Sheng Construction, Inc., and its attorney, nonparty Albert O. Grant II, appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Siegal, J.), entered June 5, 2013, as granted that branch of the motion of the defendant H.L.C. 139, LLC, which was for summary judgment dismissing the second cause of action insofar as asserted against it.

ORDERED that the appeal by nonparty Albert O. Grant II is dismissed, as he is not aggrieved by the order appealed from (see CPLR 5511) and, in any event, that appeal has been abandoned (see 22 NYCRR 670.8[e]); and it is further,

ORDERED that the order is affirmed insofar as appealed from by the plaintiff, with one bill of costs to the respondent.

Contrary to the plaintiff's contention, the Supreme Court properly granted that branch of the motion of the defendant H.L.C. 139, LLC (hereinafter H.L.C.), which was for summary judgment dismissing the second cause of action, which alleged breach of contract, insofar as asserted against it. H.L.C. demonstrated its prima facie entitlement to judgment as a matter of law by establishing that it neither entered into a contract with, nor was otherwise in privity with, the plaintiff (see CDJ Bldrs. Corp. v Hudson Group Constr. Corp., 67 AD3d 720, 722; Spectrum Painting Contrs. v Kreisler Borg Florman Gen. Constr. Co. Inc., 64 AD3d 565, 576; Hamlet at Willow Cr. Dev. Co., LLC v Northeast Land Dev. Corp., 64 AD3d 85, 104). The plaintiff failed to raise a triable issue of fact in opposition so as to warrant the denial of the motion.

The plaintiff's remaining contentions are devoid of merit or are improperly raised for the first time on appeal (see e.g. Williams v Yang Qi Nail Salon, Inc., 113 AD3d 843; Westchester Med. Ctr. v Government Empls. Ins. Co., 113 AD3d 842).
MASTRO, J.P., CHAMBERS, LOTT and DUFFY, JJ., concur.

ENTER: Aprilanne Agostino

Clerk of the Court