Dienst v. Paik Construction, Inc.

Appellate Division of the Supreme Court of New York

Dienst v. Paik Construction, Inc.

139 A.D.3d 607, 32 N.Y.S.3d 155

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 26, 2016

Docket1279 651450/13

StatusPublished

Cited by3 cases

This text of 139 A.D.3d 607 (Dienst v. Paik Construction, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dienst v. Paik Construction, Inc., 139 A.D.3d 607, 32 N.Y.S.3d 155 (N.Y. Ct. App. 2016).

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Opinion

Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered October 20, 2014, which denied the motion of third-party defendant the Private Bank and Trust Company (Private Bank) to dismiss the third-party complaint, unanimously affirmed, without costs.

In this mechanic’s lien foreclosure action brought by defendant/third-party plaintiff Paik Construction, Inc. (Paik), for nonpayment of work performed and materials furnished in constructing the condominium apartment owned by the underlying plaintiffs, the documentary evidence fails to conclusively establish that Private Bank’s loan is not a building loan agreement (see Fortis Fin. Servs. v Fimat Futures USA, 290 AD2d 383 [1st Dept 2002]). “A classic building loan mortgage is characterized, inter alia, by (1) a requirement in the loan agreement that the mortgagor construct a building or improvement with the loan and (2) a disbursement of the loan *608 in installments — as the construction progresses — rather than in one lump sum” (Juszak v Lily & Don Holding Corp., 224 AD2d 588, 588-589 [2d Dept 1996]), and is subject to the subordination provisions of Lien Law § 22 (see Altshuler Shaham Provident Funds, Ltd. v GML Tower, LLC, 21 NY3d 352, 360 [2013]). Here, the documentary evidence warranted the denial of this pre-answer motion to dismiss.

Concur— Friedman, J.P., Acosta, Saxe, Gische and Webber, JJ.

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Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered October 20, 2014, which denied the motion of third-party defendant the Private Bank and Trust Company (Private Bank) to dismiss the third-party complaint, unanimously affirmed, without costs.

In this mechanic’s lien foreclosure action brought by defendant/third-party plaintiff Paik Construction, Inc. (Paik), for nonpayment of work performed and materials furnished in constructing the condominium apartment owned by the underlying plaintiffs, the documentary evidence fails to conclusively establish that Private Bank’s loan is not a building loan agreement (see Fortis Fin. Servs. v Fimat Futures USA, 290 AD2d 383 [1st Dept 2002]). “A classic building loan mortgage is characterized, inter alia, by (1) a requirement in the loan agreement that the mortgagor construct a building or improvement with the loan and (2) a disbursement of the loan *608 in installments — as the construction progresses — rather than in one lump sum” (Juszak v Lily & Don Holding Corp., 224 AD2d 588, 588-589 [2d Dept 1996]), and is subject to the subordination provisions of Lien Law § 22 (see Altshuler Shaham Provident Funds, Ltd. v GML Tower, LLC, 21 NY3d 352, 360 [2013]). Here, the documentary evidence warranted the denial of this pre-answer motion to dismiss.

Concur— Friedman, J.P., Acosta, Saxe, Gische and Webber, JJ.

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Bluebook (online)

139 A.D.3d 607, 32 N.Y.S.3d 155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dienst-v-paik-construction-inc-nyappdiv-2016.

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