104 Contractors, Inc. v. RT GOLF ASSOCIATES, LP

• Decision Date: 29 March 2000
• Citation: 705 N.Y.S.2d 752,270 A.D.2d 817
• Parties: 104 CONTRACTORS, INC., Respondent,<BR>v.<BR>R.T. GOLF ASSOCIATES, L.P., et al., Appellants, et al., Defendants. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

270 A.D.2d 817

705 N.Y.S.2d 752

104 CONTRACTORS, INC., Respondent,

v.R.T. GOLF ASSOCIATES, L.P., et al., Appellants, et al., Defendants. (Appeal No. 2.)

Decided March 29, 2000.

Present — Pine, J. P., Hayes, Scudder and Lawton, JJ.

Amended judgment unanimously affirmed with costs.

Memorandum:

R.T. Golf Associates, L.P. and R.T. Golf, Inc. (defendants) appeal from an amended judgment after a bench trial awarding plaintiff $92,920.88 on a mechanics' lien filed against property owned by defendants. Plaintiff subcontractor filed the mechanics' lien after defendants terminated the general contractor and required both plaintiff and the general contractor to cease all work on the job site. The lien was for site work for a golf driving range and included 9,816 cubic yards of fill dirt and 480 tons of stone for a road and building pad. Defendants contend that the amended judgment must be reversed because, at the time the lien was filed, there was nothing owed by defendants to the general contractor to which the lien could attach. We disagree.

It is well settled that the rights of a subcontractor are derivative of the rights of the general contractor and that a subcontractor's lien "must be satisfied out of funds due and owing from the owner to the general contractor" at the time the lien is filed (DiVeronica Bros. v Basset, 213 AD2d 936, 937; see also, Lien Law § 4 [1]; Strain & Son v Baranello & Sons, 90 AD2d 924, 925; Bunce v Fahey, 73 AD2d 632).

The general contractor, defendant Michael Valle, had no formal contract with defendants but their informal arrangement provided for payments based on a cost plus percentage basis. A mechanics' lien may be based on such a cost plus percentage price (see, e.g., Fyfe v Sound Dev. Co., 235 NY 266, 269). Revised cost estimates were made as the project plans were revised but no ceiling price was established. Some progress payments were made during the course of the work. Supreme Court determined that, based on that informal arrangement, money became due and owing to Valle when he presented a bill for $78,528 to defendants shortly before he was discharged. We conclude that money became due and owing under this cost plus agreement when plaintiff established that defendants owed Valle for the work performed by plaintiff while Valle was the general contractor (see generally, DiVeronica Bros. v Basset, supra, at 938). The record supports the court's finding that the parties understood that cost could not be determined until the work had been performed by Valle or his subcontractors. Although defendants may not have been aware of the cost of the work being performed by plaintiff, the court found that they requested changes in the grade that required the quantity of fill...