Arr-Em Plastering Corp. v. 515 East 85th St. Corp.
| Decision Date | 25 June 1964 |
| Docket Number | ARR-EM |
| Citation | 21 A.D.2d 415,250 N.Y.S.2d 995 |
| Parties | PLASTERING CORP., Plaintiff, v. 515 EAST 85TH STREET CORP., Defendant-Appellant, Brosen Associates Inc. (formerly Brosen Realty Corp.), Defendant, Gilsen Construction Corp., Defendant-Respondent, Fein Mechanical Corp. and Marmor Construction Corp., S. J. Sens, also known as Samuel J. Sens, and The People of the State of New York, Defendants. |
| Court | New York Supreme Court — Appellate Division |
Manuel Taxel, Brooklyn, of counsel (Sylvan D. Freeman, Brooklyn, with him on the brief; Dreyer & Traub, Brooklyn, attorneys), for appellant.
Edward R. Sullivan, New York City, for respondent.
Before BOTEIN, P. J., and RABIN, McNALLY, STEVENS and STEUER, JJ.
Defendant 515 East 85th Street Corporation (herein 515), owner of the land located at this address, entered into a lease of the property with Brosen Associates Inc. (herein Brosen). The lease was for 21 years, with option to renew. By its terms Brosen agreed to erect a 13-story apartment house on the land. Brosen further agreed that it would not place any mechanic's lien on the property or suffer any such lien to be created; and, if any such lien was so placed, it would discharge the same within 30 days. Brosen contracted with Gilsen Construction Corp. (herein Gilsen) to build the apartment house.
Brosen and Gilsen are family corporations, of the same family. The officers of both are the Sens brothers and their father. The brothers are the sole stockholders of both. They occupy the same offices, are represented by the same attorneys, and the pertinent documents were executed on behalf of the corporations by the same individuals.
The contract further provided that Brosen was allowed to place a mortgage on the property, which mortgage it was to obtain at its own expense. Brosen was unable to obtain a mortgage in the sum it expected, and from which it contemplated paying Gilsen for the construction. It failed to pay and Gilsen filed a mechanic's lien against the property in the sum of $558,000.
515 has moved for summary judgment in the action to foreclose the lien. In opposition Gilsen does not dispute any of the facts but merely contends that it is a separate corporate entity not bound either by Brosen's agreement not to file a lien or its guaranty that no such lien would be filed. In the absence of evidentiary facts to support its contention, no issue is presented (O'Meara Co. v. National Park Bank of New York, 239 N.Y. 386, 146 N.E. 636, 39 A.L.R. 747).
We conclude that on the conceded facts summary judgment should issue. It is...
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Action Mechanical v. Deadwood Historic
...may include positive acts, spoken words and silence when there is a duty to speak. Id. In Arr-Em Plastering Corp. v. 515 East 85th Street Corp., 21 A.D.2d 415, 250 N.Y.S.2d 995 (N.Y.A.D. 1964), cited by Four Square, the court refused to foreclose a mechanic's lien on the basis of equitable ......
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Arr-Em Plastering Corp. v. 515 East 85th St. Corp.
...knowledge of and bound by the said covenant not to create any mechanic's lien against the premises. (Arr-Em Plastering Corp. v. 515 East 85th St. Corp., 21 A.D.2d 415, 250 N.Y.S.2d 995.) Defendant-respondent Malcan Construction Co. Inc. is the subcontractor in respect of the carpentry. Its ......