Interboro Interiors, Inc. v. Structure Tone, Inc. ( 1998 )

—Order, Supreme Court, New York County (Herman Cahn, J.), entered November 18, 1996, which, in an action by a supplier against a subcontractor for breach of contract and unjust enrichment, and against that subcontractor and the general contractor to impress a trust under Lien Law article 3-A, insofar as appealed from as limited by plaintiffs brief, granted the general contractor’s and the subcontractor’s motions to dismiss the Lien Law causes of action as preempted by the Federal Miller Act (40 USC §§ 270a, 270b), and denied plaintiffs cross motion to amend its complaint so as to add a cause of action against the general contractor for unjust enrichment, unanimously affirmed, with costs.

The causes of action based on the trust fund provisions of the Lien Law are preempted by the Miller Act, there being no dispute that the funds sought to be impressed were derived from contracts for a Federal construction project, and there being no proof that the United States has waived its immunity with respect to this project (I. Burack, Inc. v Simpson Factors Corp., 21 AD2d 481, affd 16 NY2d 604; compare, Wright v U. S. Postal Serv., 29 F3d 1426, 1430-1431). Plaintiffs proposed cause of action against the general contractor for unjust enrichment was properly rejected as an unjustified attempt to compel the general contractor to answer for the subcontractor’s debt. It is not enough that the general contractor received a benefit from the services plaintiff performed at the subcontractor’s behest (see, Kagan v K-Tel Entertainment, 172 AD2d 375, 376). Concur — Sullivan, J. P., Williams, Tom and Andrias, JJ.