Opinion
2012-10-4
NDL ASSOCIATES, INC., etc., Plaintiff–Appellant, v. VILLANOVA HEIGHTS, INC., et al., Defendants–Respondents, Deutsche Bank Trust Company Americas, et al., Defendants.
Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant. Law Office of John M. Daly, Yonkers (John M. Daly of counsel), for respondents.
Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant. Law Office of John M. Daly, Yonkers (John M. Daly of counsel), for respondents.
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 A.D.3d 639, 640–641, 915 N.Y.S.2d 135 [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 A.D.3d 557, 931 N.Y.S.2d 231 [1st Dept. 2011];Aaron v. Great Bay Contr., 290 A.D.2d 326, 736 N.Y.S.2d 359 [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 A.D.3d 580, 581, 768 N.Y.S.2d 227 [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.