Richard's Home Center & Lumber, Inc. v. Kownacki

265 A.D.2d 471, 698 N.Y.S.2d 861, 1999 N.Y. App. Div. LEXIS 10632

Opinion

—In an action, inter alia, to foreclose a mechanic’s lien, the defendants David Kownacki, Toby Kownacki, and Fidelity & Deposit Company of Maryland appeal from an order of the Supreme Court, Westchester County (Barone, J.), entered September 21, 1998, which, inter alia, denied their motion to renew and reargue a prior order of the same court entered May 8, 1998, which, among other things, denied their motion for summary judgment dismissing the complaint.

Ordered that the appeal from so much of the order as denied the branch of the motion which is to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The Supreme Court improperly denominated the appellants’ motion to renew and reargue as one to reargue only, since it was partially based upon information which was unavailable at the time the appellants originally moved for summary judgment (see, Karlin v Bridges, 172 AD2d 644; Weisse v Kamhi, 129 AD2d 698). However, contrary to the appellants’ contentions, their submissions on renewal did not eliminate the question of whether the homeowners, the appellants David P. Kownacki and Toby S. Kownacki, owed any additional money to the general contractor, the defendant Burton Garret Associates, Inc., at the time the plaintiff filed its mechanic’s lien. Accordingly, the Supreme Court properly concluded that.the appellants were not entitled to summary judgment dismissing the complaint (see, Lien Law § 4; DiVeronica Bros, v Basset, 213 AD2d 936; Perma Pave Contr. Corp. v Paerdegat Boat & Racquet Club, 156 AD2d 550; Electric City Concrete Co. v Phillips, 100 AD2d 1). Joy, J. P., Friedmann, Schmidt and Smith, JJ., concur.