Ward-Carpenter Engineers, Inc. v. Sassower

May 17, 1993
Versions:193 A.D.2d 730
598 N.Y.S.2d 534
1993 N.Y. App. Div. LEXIS 4950

In an action to foreclose a mechanic’s lien, the defendant Doris L. Sassower appeals from an order of the Supreme Court, Westchester County (Delaney, J.), entered March 13, 1991, which denied her motion to modify a judgment of the same court, dated September 23, 1988, foreclosing the mechanic’s lien, and directed her to pay the plaintiff the sum of $1,000 for legal fees on the ground that the motion was frivolous.

Ordered that the order is affirmed, with costs.

The defendant Doris L. Sassower entered into a contract with the plaintiff in 1984 in which the plaintiff agreed to prepare surveys, plans, and a subdivision map to enable her to subdivide her property. The plaintiff commenced this action to foreclose a mechanic’s lien after the defendant Sassower failed to make the payments due under the contract, and a judgment dated September 23, 1988, was entered in its favor. The judgment was affirmed on appeal in 1990 (see, Ward-Carpenter *731Engrs. v Sassower, 163 AD2d 304). Several months later, the appellant brought the motion at bar to modify the judgment pursuant to CPLR 5019 (a).

We find that the motion was properly denied, as the modification sought by the appellant did not involve a mere mistake, defect, or irregularity in the judgment, but raised an issue which was not previously litigated in the action (see, Matter of Fiorillo v New York State Dept. of Envtl. Conservation, 162 AD2d 929; Jakobleff v Jakobleff, 108 AD2d 725). Furthermore, the record supports the Supreme Court’s determination that the motion was frivolous within the meaning of 22 NYCRR 130-1.1 (c), as it delayed satisfaction of the judgment and introduced a new issue of dubious merit in law or fact. Accordingly, the award to the plaintiff of a sum for its reasonable attorneys’ fees was proper (see, e.g., Presbyterian Hosp. v Allstate Ins. Co., 188 AD2d 646; Dellafiora v Dellafiora, 172 AD2d 715). Miller, J. P., O’Brien, Copertino and Joy, JJ., concur.