96 A.D.2d 553 | N.Y. App. Div. | 1983
— In an action to foreclose a material-man’s lien, the appeal is from a judgment of the Supreme Court, Richmond County (Rubin, J.), dated November 2, 1981, which confirmed the referee’s decision of July 7,1981, in favor of the plaintiff Staten Island Supply Company and against defendant Beverly-Glenwood Richmond Corp. (hereinafter Beverly) in the total amount of $64,112.81. By order of this court dated September 13,1982, the appeal was held in abeyance and the matter was remitted to the Supreme Court, Richmond County, with the direction that upon remittitur “Special Term should refer this matter to the referee for a factual determination with regard to whether defendant Beverly is entitled to a ‘set-off’ or credit in the sum of $25,000, thereby reducing the principal amount of the judgment against it to that extent” (Staten Is. Supply Co. v Beverly-Glenwood Richmond Corp., 89 AD2d 981, 982). The referee’s report on remittitur, dated November 15, 1982, states that Beverly is not entitled to the $25,000 setoff. Judgment affirmed, with costs. The general construction contractor of Village Green, a residential community located on Staten Island, was a joint venture comprised of defendant Beverly and another corporation. Defendant Rosemary Onofrio is the representative of the estate of Michael Iosue (hereinafter Iosue), the subcontractor employed under two separate contracts to install the plumbing in those sections of Village Green designated as Loop A and Loop B. Plaintiff Staten Island Supply Co. (hereinafter SISCO) allegedly delivered materials to Iosue for use at the Village Green project, and for which it was never compensated. Its lien in the amount of $43,148.88 was timely filed on December 28, 1972. It seeks recovery of that amount from Beverly. It is the contention of Iosue’s estate that Beverly neglected to remit proper compensation for the completion of noncontractual extras and that Beverly is indebted to it in the amount of $61,703.32. Beverly replaced Iosue prior to the completion of the job at the cost of $151,753 and it asserts that Iosue’s breach of contract damaged it in the amount of $91,668. Beverly further claims that it made a