Isadore Rosen & Sons, Inc. v. Conforti & Eisele, Inc.

40 A.D.2d 794, 338 N.Y.S.2d 39, 1972 N.Y. App. Div. LEXIS 3330

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 21, 1972
• Status: Published

Opinion

Order, Supreme Court, New York County, entered May 19, 1972, unanimously reversed, on the law and on the facts, without costs and without disbursements, and application by petitioner, a subcontractor, for an order directing respondent, a general contractor, to serve on petitioner a verified statement pursuant to subdivisions 1 and 5 of section 76 of the Lien Law, denied, without prejudice to a renewal of the demand, and the application upon proof by proper affidavit of nonpayment for at least 30 days of a sum due and owing to petitioner under its subcontract; and cross motion granted, without costs. The service by the petitioner of its demand and this application was prematurely made; furthermore, the application was not upon affidavit of the petitioner. (See Matter of Hansen Excavating Co. v. Comet Constr. Corp., 14 A D 2d 911; see, also, Frontier Excavating v. Sovereign Constr. Co. of N. J., 30 A D 2d 487, app. dsmd. 24 N Y 2d 991.) Inasmuch as the petitioner proceeded prematurely and, therefore, without standing to request an itemized statement under the statute, and under the special circumstances here, we conclude that the petitioner is not in a positon to secure affirmative relief on the basis of respondent’s slight delay in moving to vacate the request.Concur—Stevens, P. J., McGivern, Markewich, Steuer and Eager, JJ.