S & S Kitchens, Inc. v. Paglivca

63 A.D.2d 671, 404 N.Y.S.2d 679, 1978 N.Y. App. Div. LEXIS 11557

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1978
• Status: Published

Opinion

— In an action, inter alia, to adjudge that plaintiff has a valid lien upon certain premises, defendants Paglivca appeal from an order of the Supreme Court, Putnam County, entered April 11, 1977, which denied their motion to vacate a money judgment obtained against them upon default and to dismiss the complaint. Order modified, on the law, by deleting therefrom the provision that the motion is denied and substituting therefor a provision that the motion is granted to the extent of deleting from the default judgment the imposition of personal liability upon appellants and that the motion is otherwise denied. As so modified, order affirmed, without costs or disbursements, and action remanded to the Special Term for further proceedings against the appellants in accordance with the applicable provisions of the Lien Law. The cause of action against the appellants sought to secure a mechanic’s lien on the premises owned by them, in which the kitchen cabinets and accessory equipment provided by the plaintiff-respondent, in accordance with its contract with the builder, had been installed. The default judgment, however, erroneously granted a personal judgment against the appellants for the sum certain claimed by the respondent. All that respondent was entitled to upon appellants’ default was a judgment declaring that it had a valid mechanic’s lien on appellants’ premises in an amount, if any, to be determined by the court after reference in accordance with the applicable provisions of law. Mollen, P. J., Hopkins, Titone, Shapiro and Hawkins, JJ., concur.