Diamond D Construction Corp.

261 A.D.2d 903, 689 N.Y.S.2d 844, 1999 N.Y. App. Div. LEXIS 4959

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 7, 1999
• Docket: Appeal No. 1
• Status: Published

Opinion

—Order unanimously reversed on the law with costs, application denied and cross motion granted. Memorandum: Supreme Court erred in granting the application of petitioner to vacate what it characterized as a lien against moneys due petitioner under a contract between petitioner and the New York State Department of Transportation. Respondent had filed with the State Comptroller a notice to withhold payment upon petitioner’s refusal to comply within 10 days with a request for payroll records for the project, as required by Labor Law § 220 (3-a) (c). We agree with respondent that the withholding of payment is not a lien that may be discharged by posting an undertaking pursuant to the Lien Law and that to allow petitioner to vacate the notice to withhold payment by posting an undertaking would undermine respondent’s ability to require compliance with the statute. (Appeal from Order of Supreme Court, Erie County, Whelan, J. — Lien Law.) Present — Green, J. P., Law-ton, Pigott, Jr., Scudder and Balio, JJ.