KNR Constr., LLC v Epiphany Constr. Servs., Ltd., 2024 NY Slip Op 03333 [228 AD3d 511]

June 18, 2024

Appellate Division, First Department

[*1]

KNR Construction, LLC, Appellant,

v

Epiphany Construction Services, Ltd., Also Known as Epiphany Construction Services, et al., Defendants, and The J. Pilla Group Ltd. et al., Respondents.

Joseph P. Dineen, Garden City, for appellant.

Cozen O’Connor, New York (Amanda L. Nelson of counsel), for respondents.

Order, Supreme Court, Bronx County (Andrew Cohen, J.), entered on or about April 18, 2023, which, insofar as appealed from as limited by the briefs, denied plaintiff’s motion for partial summary judgment against defendant Arch Insurance Company for the amount asserted in connection with a lien discharge bond, unanimously affirmed, without costs.

To enforce its mechanic’s lien as a surety, plaintiff was required to make a prima facie case the lien was valid, and that it was entitled to the amount asserted. Plaintiff did not adduce sufficient evidence to establish prima facie entitlement to summary judgment, as its evidence failed to establish the work performed and that it was entitled to the amount asserted in the lien, i.e., $74,872.21 ( see Ruckle & Guarino, Inc. v Hangan , 49 AD3d 267 , 267-268 [1st Dept 2008]; Varlotta Constr. Corp. v Sette-Juliano Constr. Corp. , 234 AD2d 183, 183 [1st Dept 1996]). The default of sub-contractor, defendant Epiphany Construction Services, Ltd., who retained plaintiff as a sub-sub-contractor, does not relieve plaintiff of its burden against nondefaulting parties ( see Firedoor Corp. of Am. v Merlin Indus. , 86 AD2d 577, 577 [1st Dept 1982]; see also Holt v Holt , 262 AD2d 530, 530-531 [2d Dept 1999]).

We have considered plaintiff’s remaining arguments and find them unavailing. Concur—Webber, J.P., Gesmer, Mendez, Rosado, Michael, JJ..