Medco Plumbing, Inc. v. Sparrow Construction Corporation

Decision Date17 October 2005
Docket Number2004-05089.
Citation802 N.Y.S.2d 730,2005 NY Slip Op 07672,22 A.D.3d 647
PartiesMEDCO PLUMBING, INC., Respondent, v. SPARROW CONSTRUCTION CORPORATION et al., Appellants.
CourtNew York Supreme Court — Appellate Division

Ordered that the judgment is affirmed insofar as appealed from, with costs.

Contrary to the contentions of the defendants Sparrow Construction Corporation (hereinafter Sparrow) and Randolph Silverstein (hereinafter Randolph), the Supreme Court properly granted that branch of the plaintiff's motion which was pursuant to CPLR 4401 for judgment in its favor on the issue of liability on its cause of action to enforce a trust under Lien Law article 3-A. Pursuant to Lien Law § 75 (4), the "[f]ailure of the trustee to keep the books or records required by this section shall be presumptive evidence that the trustee has applied or consented to the application of trust funds actually received by him as money or an instrument for the payment of money for purposes other than a purpose of the trust." While Sparrow and Randolph presented evidence at trial indicating that the corporate books had been seized by the Manhattan District Attorney's office, the mere assertion that such books and records were kept was insufficient to avoid the statutory presumption (see In re Mitchell, 1996 WL 631730 at *4, n 2, 1996 Bankr LEXIS 1384 at *9 n 2 [ND NY, Oct. 18, 1996] [96-CV-581]; Raisler Corp. v. Uris 55 Water St. Co., 91 Misc 2d 217, 221 [1977]; Schwadron v. Freund, 69 Misc 2d 342, 344 [1972]). In any event, the conclusory and vague assertions by Sparrow and Randolph as to what books and records were taken by the Manhattan District Attorney's office, as well as their failure to demonstrate that they made any attempt to regain possession thereof, failed to constitute a reasonable excuse (see generally Giarrusso Building Supplies, Inc. v. Hogan, 193 BR 130, 139 [1995]). Accordingly, the statutory presumption was properly invoked. Since Sparrow failed to rebut the statutory presumption by producing evidence that it did not divest the trust funds, the Supreme Court properly granted judgment in favor of the plaintiff on that cause of action (see In re Mitchell, supra).

Randolph also claims that the Supreme Court erred in granting that branch of the plaintiff's motion pursuant to CPLR 4401 which was for judgment on the cause of action to enforce a trust against him individually since he is not a trustee under the Lien Law (see Lien Law § 75 [4]); Forest Elec. Corp. v. Karco-Davis, Inc., 259 AD2d 303 [1999]). However, the plaintiff ...

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  • In Re Universal Service Fund Telephone Billing Practice Litigation. Class
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • September 20, 2010
    ...if “the jury could not have reached its verdict on any fair interpretation of the evidence,” Medco Plumbing, Inc. v. Sparrow Constr. Corp., 22 A.D.3d 647, 802 N.Y.S.2d 730, 732 (N.Y.App.Div.2005), or if the award is not “within reasonable bounds and supported by the evidence,” Carpenter v. ......
  • In re Kofsky
    • United States
    • U.S. Bankruptcy Court — Southern District of New York
    • September 19, 2006
    ...Bldg. Sys., Inc. v. Rende, 236 A.D.2d 494, 495, 653 N.Y.S.2d 694, 695 (2d Dept.1997); see also Medco Plumbing, Inc., v. Sparrow Construction Corp., 22 A.D.3d 647, 802 N.Y.S.2d 730 (2d Dept.2005). The basis for liability does not appear very important under state law, but the distinction is ......
  • Mike Bldg. & Contracting Inc. v. Just Homes Llc
    • United States
    • New York Supreme Court
    • February 2, 2010
    ...money or an instrument for the payment of money for purposes other than a purpose of the trust’ ” ( Medco Plumbing, Inc. v. Sparrow Constr. Corp., 22 A.D.3d 647, 648, 802 N.Y.S.2d 730 [2005], quoting Lien Law § 75[4] ). While defendants do not dispute their failure to maintain books and rec......
  • Vatalaro v. Cnty. of Suffolk
    • United States
    • New York Supreme Court — Appellate Division
    • July 18, 2018
    ...122, 655 N.E.2d 163 ; Leonard v. New York City Tr. Auth., 90 A.D.3d 858, 859, 934 N.Y.S.2d 721 ; Medco Plumbing, Inc. v. Sparrow Constr. Corp., 22 A.D.3d 647, 649, 802 N.Y.S.2d 730 ). Resolution of the motion does not involve a question of law, but rather requires a discretionary balancing ......
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