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AVON ELECTRICAL SUPPLIES v. CHRIST GATZONIS

Appellate Division of the Supreme Court of New York, Second Department
Jan 13, 1997
235 A.D.2d 380 (N.Y. App. Div. 1997)

Opinion

January 13, 1997.

In an action, inter alia, to recover for goods sold and delivered, the defendant Colonia Insurance Company appeals from so much of an order of the Supreme Court, Queens County (Kitzes, J.), dated June 28, 1995, as denied the branch of its motion which was for summary judgment on its cross claim against the defendant New York City School Construction Authority.

Before: Mangano, P. J., Bracken, Copertino and Pizzuto, JJ.


Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied the branch of the motion of the defendant Colonia Insurance Company (hereinafter Colonia) for summary judgment against the defendant New York City School Construction Authority (hereinafter the SCA) for the moneys the SCA withheld from Colonia's principal, the defendant Christ Gatzonis Electric Contractors, Inc. (hereinafter Gatzonis), for work Gatzonis performed under certain school construction contracts prior to their termination by the SCA. The payments which were withheld by the SCA do not constitute assets of a Lien Law article 3-A trust ( see, Tri-City Elec. Co. v People, 96 AD2d 146, 152, affd 63 NY2d 969; Palmer Constr. v Hines, 154 Misc 2d 248, 251; Fehlhaber Corp. v Levitt, 64 Misc 2d 495, 497; see also, Interel Envtl. Tech. v United Jersey Bank, 894 F Supp 623, 634; 3 Warren's Weed, New York Real Property, Mechanics' Liens, § 15.03 [5] [4th ed]).

Nor may Colonia recover from the SCA pursuant to the contracts, since there are criminal charges pending against Gatzonis which relate to the disputed contracts. If the criminal charges against Gatzonis are sustained, the SCA may rescind the contracts and not be liable to Gatzonis for work performed thereunder ( see, Jered Constr. Corp. v New York City Tr. Auth., 22 NY2d 187, 193).


Summaries of

AVON ELECTRICAL SUPPLIES v. CHRIST GATZONIS

Appellate Division of the Supreme Court of New York, Second Department
Jan 13, 1997
235 A.D.2d 380 (N.Y. App. Div. 1997)
Case details for

AVON ELECTRICAL SUPPLIES v. CHRIST GATZONIS

Case Details

Full title:AVON ELECTRICAL SUPPLIES, INC., et al., Plaintiffs, v. CHRIST GATZONIS…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 13, 1997

Citations

235 A.D.2d 380 (N.Y. App. Div. 1997)
652 N.Y.S.2d 72

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