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Interior Building Services, Inc. v. Broadway 1384 LLC

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 13, 2010

INTERIOR BUILDING SERVICES, INC., PLAINTIFF-RESPONDENT,
v.
BROADWAY 1384 LLC, DEFENDANT-APPELLANT, IN GEAR SWIMWEAR, LLC, ETC., ET AL., DEFENDANTS, S & J ENTRANCE AND WINDOW SPECIALISTS, INC., DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered July 7, 2009, which denied defendant landlord Broadway 1384's motion for partial summary judgment dismissing the general contractor's third cause of action and the cross claim by defendant subcontractor S & J to foreclose on their mechanic's liens against the building, and declined to discharge the mechanic's liens of four non-appearing subcontractors, unanimously reversed, on the law, with costs, the landlord's motion for partial summary judgment granted, and the liens of the general contractor, subcontractor S & J, and the non-appearing subcontractors discharged.

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.

Andrias, J.P., Catterson, Renwick, DeGrasse, Manzanet-Daniels, JJ.

100135/08

There were no issues of fact concerning the liability of the landlord for improvements made to defendant tenant's demised premises under Lien Law § 3. The work in question was performed solely for the tenant's benefit and convenience. Plaintiff general contractor and all of the subcontractors dealt exclusively with the tenant but for the landlord's concerns that the renovation did not interfere with the other tenants in the building. The landlord was not a party to the contract between the general contractor and the tenant and any renovation expenses incurred by the tenant over and above the initial credit provided by the landlord were the sole responsibility of the tenant.

Furthermore, any consent provided by the landlord was that consent required under the lease. Thus, the landlord was entitled to summary judgment under Lien Law § 3 and a discharge of the liens in question (Paul Mock, Inc. v 118 E. 25th St. Realty Co., 87 AD2d 756 [1982]).

The mechanic's liens filed by the subcontractors who have not appeared or answered should have also been discharged (see Lien Law § 44[5]; Naber Elec. Corp. v George A. Fuller Co., Inc., 62 AD3d 971 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100513

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