Bi-County Concrete Corp. v. Newman Development Group, L. L. C.

In an action, inter alia, to foreclose a mechanic’s lien, the plaintiff appeals from an order of the Supreme Court, [749] Nassau County (Feuerstein, J.), entered June 15, 1998, which denied its motion for partial summary judgment dismissing the defendants’ third counterclaim with leave to renew upon the completion of discovery. Ordered that the order is affirmed, without costs or disbursements. The plaintiff failed to make a showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issue of fact with respect to the defendants’ counterclaim pursuant to Lien Law § 39. Accordingly, the Supreme Court properly denied the motion with leave to renew upon the completion of discovery (see, CPLR 3212 [f]; see also, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Coppola Gen. Contr. Corp. v Noble House Constr., 224 AD2d 856; Matter of Upstate Bldrs. Supply Corp. [Maple Knoll Apts.], 37 AD2d 901). Ritter, J. P., Joy, H. Miller and Smith, JJ., concur.