Velardi v. Lerman

203 A.D.2d 929, 612 N.Y.S.2d 1007

Opinion

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Because plaintiffs mechanic’s lien had expired, Supreme Court erred in denying defendants’ motion to dismiss plaintiff’s first cause of action to foreclose that lien. Supreme Court properly denied, however, defendants’ motion for summary judgment dismissing plaintiff’s causes of action for breach of contract and quantum meruit because, accepting as true the evidence presented by plaintiff, there is at least arguably a triable issue (see, Hourigan v McGarry, 106 AD2d 845, appeal dismissed 65 NY2d 637). Supreme Court’s order is modified, therefore, to grant in part defendants’ motion for summary judgment by dismissing plaintiffs first cause of action. (Appeal from Order of Supreme Court, Oneida County, Tenney, J. — Summary Judgment.) Present — Pine, J. P., Law-ton, Fallon, Davis and Boehm, JJ.