Opinion
No. 2581.
January 22, 2008.
Judgment, Supreme Court, New York County (Louis B. York, J.), entered December 15, 2006, after a nonjury trial, in an action to foreclose a mechanic's lien, in favor of plaintiff-respondent and against intervenors-defendants-appellants and defendant-appellant surety company, unanimously modified, on the law, to vacate so much thereof as holds intervenors directly liable to plaintiff-respondent, the judgment is deemed paid in full, and otherwise affirmed, with costs in favor of intervenors payable by plaintiff-respondent.
Mazur, Carp Rubin, P.C., New York (Sayward Mazur of counsel), for Conseco Variable Life Insurance Company, Conseco Annuity Insurance Company and Conseco Life Insurance Company of Texas, appellants.
Atlas Marantz LLP, New York (Neil G. Marantz of counsel), for respondent.
Before: Lippman, P.J., Saxe, Nardelli, Williams and Moskowitz, JJ.
There is no evidence of exaggeration, much less that any exaggeration was willful, warranting a declaration under Lien Law § 39 that plaintiffs mechanic's lien is void ( cf. Strongback Corp. v N.E.D. Cambridge Ave. Dev. Corp., 25 AD3d 392 [2006]). We modify only insofar as the judgment holds intervenors directly liable to plaintiff in quasi contract. We reject the trial court's finding that intervenors formally admitted that they benefitted from plaintiffs work, and, even if we were to assume, although hardly clear, that intervenors did so benefit, it remains that plaintiffs services were rendered not at intervenors' behest but at the behest of their assignor. Thus, plaintiff cannot recover against intervenors in quantum meruit ( see Kagan v K-Tel Entertainment, 172 AD2d 375, 377 [1991], citing Langel v Betz, 250 NY 159, 161-162; Prestige Caterers v Kaufman, 290 AD2d 295, 295-296 [2002]). We have considered appellants' other contentions and find them unavailing.