S.L. Euro Contracting, Ltd. v. Bid Interior Construction, Inc.

214 A.D.2d 315, 625 N.Y.S.2d 12, 1995 N.Y. App. Div. LEXIS 3642

Opinion

Order and judgment (one paper), Supreme Court, New York County (Diane Lebedeff, J.), entered November 19, 1993, which, in an action to foreclose a mechanics’ lien, awarded plaintiff partial summary judgment on its course of action for "profits”, unanimously affirmed, with costs.

While the exact nature of the parties’ business relationship remains to be determined, there is no dispute that they were to share profits equally and that a definite amount of money was owing to plaintiff. Absent an agreement deferring payment of uncollected moneys for services rendered, or a genuine issue casting doubt upon their collectibility, we agree with the IAS Court that such moneys are "profits” to which plaintiff is entitled to its half share (cf., Dreier v Linden, 70 AD2d 820, 821, affd sub nom. Zuckerman v Linden, 66 NY2d 706). Plaintiff’s argument that defendant is improperly raising the meaning of the term "profit” for the first time on appeal is moot in view of the foregoing, and also without merit (see, Matter of Knickerbocker Field Club v Site Selection Bd., 41 AD2d 539, 540, citing Persky v Bank of Am. Natl. Assn., 261 NY 212, 218-219). Concur—Rosenberger, J. P., Ellerin, Wallach and Tom, JJ.