Town & Country Linoleum & Carpet Co. v. Tropea

1046 —Order unanimously reversed on the law without costs, motion for reargument denied and order dated March 13, 1998 reinstated. Memorandum: Supreme Court erred in granting re-argument and, upon reargument, vacating the order dated March 13, 1998 and denying plaintiff’s motion for summary judgment in this action to enforce a mechanic’s lien. Plaintiff, a subcontractor that provided materials and services in connection with the construction of defendants’ residence, established that, at the time the lien was filed, there was an amount due and owing on the contract between defendants and the contractor (see, Lien Law § 4 [1]; Bunce, Ltd. v Fahey, 73 AD2d 632, 633). Defendants argue that, at the time the lien was filed, they had already overpaid the contractor. Defendants failed, however, to submit evidence sufficient to raise an issue of fact, either in opposition to the original motion or in support of their motion to reargue. Although defendants established that they made payments to the contractor and the contractor withheld payment from the subcontractors, defendants failed to raise an issue of fact whether they had made payments in excess of the contract price at the time the lien was filed (see, West-Fair Elec. Contrs. v Aetna Cas. & Sur. Co., 87 NY2d 148, 157-158; Lien Law § 4 [1]). Payments were made by defendants to a subcontractor to which the contractor had assigned his right to payment under the contract. Those payments, made after the lien was filed, do not defeat plaintiffs lien because the assignment was not filed as required by Lien Law § 15 (see, Edison Elec. Illuminating Co. v Frick Co., 221 NY 1, 6-8). (Appeal from Order of Supreme Court, Onondaga County, Murphy, J.— Summary Judgment.) Present — Green, J. P., Hayes, Pigott, Jr., Scudder and Balio, JJ.