Donjon Marine Co. v. Mergentime Corp.

203 A.D.2d 129, 610 N.Y.S.2d 784, 1994 N.Y. App. Div. LEXIS 4058

Opinion

—Order, Supreme Court, New York County (Walter Schackman, J.), entered on or about March 4, 1993, which granted plaintiff’s motion to the extent of ordering defendant to pay to the court the sum of $64,577.52 pending resolution of this breach of contract action, unanimously affirmed, with costs.

The court properly applied Lien Law § 77 (3) (a) to impress a trust upon monies received by defendant contractor pending determination of plaintiff subcontractor’s claim to such funds and defendant’s alleged diversion thereof (Lien Law § 71 [2]; Aquilino v United States, 10 NY2d 271, 278-280). Defendant was not entitled to pay valid business expenses or itself prior to payment of subcontractors and materialmen (see, Matter of Kawczynski, 442 F Supp 413, 415). Concur — Murphy, P. J., Rosenberger, Wallach, Ross and Rubin, JJ.