Opinion
December 19, 1988
Appeal from the Supreme Court, Westchester County (Owen, J.).
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The record supports the trial court's finding that the defendant owner's actions demonstrated a failure to facilitate the plaintiff builder's performance under the contract (see, Savin Bros. v State of New York, 62 A.D.2d 511, affd 47 N.Y.2d 934). Further, the record supports the court's conclusion that the defendant's locking out of the plaintiff from the work site constituted a material breach of the contract, justifying the plaintiff's stoppage of work on the project (see, 22 N.Y. Jur 2d, Contracts, §§ 365, 377; see also, Felix Contr. Corp. v Oakridge Land Prop. Corp., 106 A.D.2d 488, lv denied 66 N.Y.2d 606). The plaintiff's election not to waive this breach is evidenced by his filing of a mechanic's lien only days after the breach (see, 22 N Y Jur 2d, Contracts, § 393, at 304; cf., General Supply Constr. Co. v Goelet, 241 N.Y. 28, 35). Moreover, because of his conduct, the defendant may not recover damages incurred in completing the job (see, e.g., Felix Contr. Corp. v Oakridge Land Prop. Corp., supra; see generally, 22 N.Y. Jur 2d, Contracts, § 379).
Finally, we find no basis to disturb the court's finding that the plaintiff did not willfully exaggerate the lien (see, Soundwall Constr. Corp. v Moncarol Constr. Corp., 56 Misc.2d 892, 897-898). Lawrence, J.P., Rubin, Spatt and Sullivan, JJ., concur.