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Spectrum Painting Contractors, Inc. v. Kreisler Borg Florman General Construction Co.

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


July 7, 2009

SPECTRUM PAINTING CONTRACTORS, INC., PLAINTIFF,
v.
KREISLER BORG FLORMAN GENERAL CONSTRUCTION CO., INC., ET AL., DEFENDANTS, MIRIAM OSBORN MEMORIAL HOME ASSOCIATION,
APPELLANT,
R & J CONSTRUCTION CORP., ET AL., RESPONDENTS.

In an action, inter alia, to enforce a trust pursuant to Lien Law article 3-A, the defendant Miriam Osborn Memorial Home Association appeals from an order of the Supreme Court, Westchester County (Nicolai, J.), entered April 18, 2008, which denied those branches of its motion which were to disqualify Lester Gulitz, and his law firm, Welby, Brady & Greenblatt, LLP, as counsel for the defendant Solar Electric Systems Inc., and to decertify that defendant as the class representative of the class of beneficiaries of a Lien Law article 3-A trust.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

ROBERT A. SPOLZINO, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL and PLUMMER E. LOTT, JJ.

(Index No. 3122/02)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

In 2000 the defendant Miriam Osborn Memorial Home Association (hereinafter Osborn), which operates a development for retirees, borrowed the sum of approximately $57 million from the Dormitory Authority of the State of New York to finance a capital improvement project. Pursuant to article 3-A of the Lien Law, the proceeds of the building loan constituted a trust fund for the purpose of paying certain statutorily-defined costs of improvement (see Lien Law § 2[5]; §§ 70, 71). In 2006 Solar Electric Systems, Inc. (hereinafter Solar), was certified as class representative of the class of beneficiaries of the trust fund. Contrary to Osborn's contention, certain conduct on the part of Solar's counsel did not warrant disqualification of Solar's counsel or decertification of Solar as class representative (see CPLR 901[a]; 902; S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 443; cf. Meachum v Outdoor World Corp., 171 Misc 2d 354). Accordingly, the Supreme Court properly denied those branches of Osborn's motion which were to disqualify Solar's counsel and to decertify Solar as class representative.

Osborn's remaining contentions are either not properly before this Court or without merit.

SPOLZINO, J.P., ANGIOLILLO, LEVENTHAL and LOTT, JJ., concur.

20090707

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