Façade Tech., LLC v. CNY Constr. 701 LLC

2023 NY Slip Op 02613

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 16, 2023
• Docket: Index No. 653587/19 Appeal No. 276&M-1665 Case No. 2022-02575
• Status: Published

Opinion

Fa‡ade Tech., LLC v CNY Constr. 701 LLC

2023 NY Slip Op 02613

Decided on May 16, 2023

Appellate Division, First 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 and Entered: May 16, 2023
Before: Renwick, A.P.J., Webber, Oing, Singh, Kennedy, JJ.

Index No. 653587/19 Appeal No. 276&M-1665 Case No. 2022-02575

[*1]FaÇade Technology, LLC, etc., Plaintiffs-Appellant,

v

CNY Construction 701 LLC et al., Defendants-Respondents, CNY Group LLC, et al., Defendants.

Cohen Seglias Pallas Greenhall & Furman PC, New York (Jason A. Copley of counsel), for appellant.

Rich, Intelisano & Katz, LLP, New York (Robert J. Howard of counsel), for respondents.

Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered May 13, 2022, which denied plaintiff's motion to certify the seventh cause of action of its verified complaint as a class action, unanimously affirmed, without costs.

Plaintiff, a subcontractor at a construction project near Times Square, seeks to recover unpaid amounts for the labor, materials, equipment, and services it allegedly furnished to defendant CNY Construction 701 LLC, the general contractor on the project. In the seventh cause of action, plaintiff seeks to recover damages for alleged diversion of trust funds in violation of Lien Law article 3-A.

Supreme Court providently exercised its discretion in denying plaintiff's motion to maintain the seventh cause of action as a class action, as plaintiff failed to establish, as necessary for certification of a class action, that a "class action is superior to other available methods for the fair and efficient adjudication of the controversy" (CPLR 901[a][5]; see Pludeman v Northern Leasing Sys., Inc., 74 AD3d 420, 422 [1st Dept 2010]). On the contrary, the putative class members already have appeared and are represented in other pending related actions, pursuing their own independent claims that do not appear to include claims asserting diversion of trust funds.

M-2023-1665 - FaÇade Technology, et al. v

CNY Construction, et al.

Motion for a stay of the underlying proceedings pending

resolution of the appeal, denied.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 16, 2023