Certified Industries, Inc. v. International Business Machines Corp.

69 A.D.2d 806, 415 N.Y.S.2d 65, 1979 N.Y. App. Div. LEXIS 11451

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 2, 1979
• Status: Published

Opinion

In an action to foreclose a mechanic’s lien, the appeal, as limited by appellants’ brief, is from so much of (1) an order of the Supreme Court, Kings County, entered August 17, 1978, as granted the plaintiff summary judgment against them and (2) the judgment entered thereon on August 23, 1978. Appeal from the order dismissed (see Matter of Aho, 39 NY2d 241, 248). Judgment affirmed insofar as appealed from. Plaintiff is awarded one bill of $50 costs and disbursements. The payment made by defendant Dember Construction Corporation to the subcontractor, Smith-Sparrow Construction Corp., was an advance payment pursuant to section 7 of the Lien Law. The good faith defense permitted under that section may not be used if payment is made subsequent to the filing of a mechanic’s lien. Here, the payment was so made. Thus, there is no issue of fact as to Dember’s good faith and summary judgment was proper (see Drane Lbr. Co. v T. G. K. Constr. Co., 39 AD2d 567). Damiani, J. P., Shapiro, Margett and Martuscello, JJ., concur.