JT & T Air Conditioning Corp. v. BG National P & H Inc.

Appellate Division of the Supreme Court of New York

JT & T Air Conditioning Corp. v. BG National P & H Inc.

293 A.D.2d 429, 740 N.Y.S.2d 856, 2002 N.Y. App. Div. LEXIS 4357

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

DecidedApril 30, 2002

StatusPublished

This text of 293 A.D.2d 429 (JT & T Air Conditioning Corp. v. BG National P & H 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.

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JT & T Air Conditioning Corp. v. BG National P & H Inc., 293 A.D.2d 429, 740 N.Y.S.2d 856, 2002 N.Y. App. Div. LEXIS 4357 (N.Y. Ct. App. 2002).

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Opinion

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered March 14, 2001, which denied the motion of defendant BG National Plumbing & Heating, Inc. (BG National) for an extension of time to file an answer to the complaint and granted plaintiff leave to move for, inter alia, a default judgment, and judgment, same court and Justice, entered September 21, 2001, which, to the extent appealable, awarded plaintiff costs, including attorneys’ fees, pursuant to 22 NYCRR 130-1.1, unanimously affirmed, with costs. Appeal from that portion of the aforesaid September 21, 2001 judgment awarding plaintiff damages in the principal amount of $65,000, plus interest, unanimously dismissed, without costs, as taken from a nonappealable paper, the subject portion of the judgment having been entered on BG National’s default.

The motion court properly found that defendant BG National failed to present a meritorious defense and therefore was not entitled to relief pursuant to CPLR 317 (see, MacMarty, Inc. v Scheller, 201 AD2d 706). Having repeatedly certified to the Comptroller that plaintiff, its subcontractor, was in full compliance with Labor Law § 220, BG National was properly estopped from premising its defense to plaintiff’s claim for payment in this action upon the contradictory allegation that plaintiff had not complied with Labor Law § 220. Nor was there merit to BG National’s remaining defenses.

The court’s determination that BG National’s conduct was frivolous within the meaning of 22 NYCRR 130-1.1 (c), and consequent award of costs, including reasonable attorneys’ fees and disbursements, was not an improvident exercise of discretion and, accordingly, should not be disturbed (see, Matter of Metamorphosis Constr. Corp. v Glekel, 247 AD2d 231).

We have considered BG National’s remaining arguments and find them unavailing. Concur—Nardelli, J.P., Sullivan, Ellerin, Lerner and Rubin, JJ.

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Order, Supreme Court, Bronx County (Bertram Katz, J.), entered March 14, 2001, which denied the motion of defendant BG National Plumbing & Heating, Inc. (BG National) for an extension of time to file an answer to the complaint and granted plaintiff leave to move for, inter alia, a default judgment, and judgment, same court and Justice, entered September 21, 2001, which, to the extent appealable, awarded plaintiff costs, including attorneys’ fees, pursuant to 22 NYCRR 130-1.1, unanimously affirmed, with costs. Appeal from that portion of the aforesaid September 21, 2001 judgment awarding plaintiff damages in the principal amount of $65,000, plus interest, unanimously dismissed, without costs, as taken from a nonappealable paper, the subject portion of the judgment having been entered on BG National’s default.

The motion court properly found that defendant BG National failed to present a meritorious defense and therefore was not entitled to relief pursuant to CPLR 317 (see, MacMarty, Inc. v Scheller, 201 AD2d 706). Having repeatedly certified to the Comptroller that plaintiff, its subcontractor, was in full compliance with Labor Law § 220, BG National was properly estopped from premising its defense to plaintiff’s claim for payment in this action upon the contradictory allegation that plaintiff had not complied with Labor Law § 220. Nor was there merit to BG National’s remaining defenses.

The court’s determination that BG National’s conduct was frivolous within the meaning of 22 NYCRR 130-1.1 (c), and consequent award of costs, including reasonable attorneys’ fees and disbursements, was not an improvident exercise of discretion and, accordingly, should not be disturbed (see, Matter of Metamorphosis Constr. Corp. v Glekel, 247 AD2d 231).

We have considered BG National’s remaining arguments and find them unavailing. Concur—Nardelli, J.P., Sullivan, Ellerin, Lerner and Rubin, JJ.

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293 A.D.2d 429, 740 N.Y.S.2d 856, 2002 N.Y. App. Div. LEXIS 4357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jt-t-air-conditioning-corp-v-bg-national-p-h-inc-nyappdiv-2002.

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