Bristol, Litynski, Wojcik, P. C. v. Elliott

107 Misc. 2d 1005 | N.Y. Sup. Ct. | 1981

OPINION OF THE COURT

Edward S. Conway, J.

This is a motion by the petitioner for an order directing respondent to furnish the petitioner with a verified statement of entries, pursuant to subdivision 5 of section 76 of the Lien Law.

Petitioner contracted with respondent to perform landscape architectural services on two properties owned by the respondent in the City of Albany, New York, and petitioner claims a balance due on the contract of $1,140.

On September 26, 1980, petitioner served on respondent a demand for a verified statement of entries pursuant to section 76 of the Lien Law. The demand requested the respondent to deliver a verified statement setting forth the entries with respect to the books or records maintained for the Lien Law trust established by law for the improvements performed by petitioner. The respondent has not complied with the demand although granted extensions of time to furnish said information.

Respondent contends that as a result of breaches of contract by the petitioner, there is no balance due under the said contract. Respondent further contends that there are no trust funds within the meaning of article 3-A of the Lien Law respecting the particular contract, inasmuch as respondent is the owner of the premises involved and the funds to pay the consideration expressed in the contract are his own and are not funds originating from any of the sources described in subdivision 5 of section 70 of the Lien Law and therefore said section does not apply to this contract.

This court agrees with the contention of the respondent that there is no trust created by the instant contract and that there are no assets of a trust of which respondent is a trustee. Subdivision 5 of section 70 of the Lien Law does not apply, and the petitioner’s motion is therefore denied.