New York Supreme Court Appellate Division, First Department
October 4, 2012
NDL ASSOCIATES, INC., ETC., PLAINTIFF-APPELLANT,
VILLANOVA HEIGHTS, INC., ET AL., DEFENDANTS-RESPONDENTS, DEUTSCHE BANK TRUST COMPANY AMERICAS, ET AL., DEFENDANTS.
NDL Assoc., Inc. v Villanova Hgts., Inc.
Decided on October 4, 2012
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., Sweeny, Moskowitz, Manzanet-Daniels, JJ.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about March 8, 2012, which, in an action to foreclose on a mechanic's lien, following a hearing, vacated and declared void plaintiff's mechanic's lien, unanimously reversed, on the law, without costs, the order vacated, and the matter remanded and assigned to a different Justice. Appeal from order, same court and Justice, entered on or about October 7, 2011, which granted defendants-respondents' motion for a hearing on whether the mechanic's lien was wilfully exaggerated, unanimously dismissed, without costs.
Supreme Court improperly held a hearing on the issue of whether the mechanic's lien was wilfully exaggerated (see Bryan's Quality Plus, LLC v Dorime, 80 AD3d 639, 640-641 [2d Dept 2011]). That issue should be determined at trial or on a motion for summary judgment (see e.g. Northe Group, Inc. v Spread NYC, LLC, 88 AD3d 557 [1st Dept 2011]; Aaron v Great Bay Contr., 290 AD2d 326 [1st Dept 2002]). Supreme Court's hearing effectively resulted in a bench trial on defendants' counterclaim of wilful exaggeration, prior to the close of discovery and without plaintiff waiving its right to a jury and consenting to a bench trial. Such a procedure is improper. In any event, defendants failed to demonstrate that plaintiff willfully exaggerated the lien. Indeed, even Supreme Court found that any excessive billing on plaintiff's part was not malicious or done with fraudulent intent (see Minelli Constr. Co. v Arben Corp., 1 AD3d 580, 581 [2d Dept 2003]).
The matter should be assigned to a different Justice, as the record shows that Supreme Court was biased in favor of defendants.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 4, 2012
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