5 Bros., Inc. v. D.C.M. of N.Y., LLC , 998 N.Y.S.2d 192 ( 2014 )

5 Bros., Inc. v D.C.M. of N.Y., LLC (2014 NY Slip Op 08398)

5 Bros., Inc. v D.C.M. of N.Y., LLC

2014 NY Slip Op 08398

Decided on December 3, 2014

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 3, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
SANDRA L. SGROI
ROBERT J. MILLER
BETSY BARROS, JJ.

2013-08095
(Index Nos. 500824/11, 19094/12)

[*1]5 Brothers, Inc., also known as Avon Contractors, plaintiff,

v

D.C.M. of New York, LLC, appellant, et al., defendants, Vintage Flooring & Tile, respondent. (Matter No. 1)



Matter of Vintage Flooring & Tile, Inc., respondent, vDCM of NY, LLC, appellant. (Matter No. 2)

Kushnick Pallaci, PLLC, Melville, N.Y. (Vincent T. Pallaci and Gina M. Wischhusen of counsel), for appellant.

DECISION & ORDER

In an action to foreclose a mechanic's lien and a related proceeding pursuant to CPLR article 75 to confirm an arbitration award, D.C.M. of New York, LLC, appeals from an amended order of the Supreme Court, Kings County (Demarest, J.), dated April 2, 2013, which denied its motion to vacate an arbitration award dated July 24, 2012, and for summary judgment dismissing the cross claim of the defendant Vintage Flooring & Tile to foreclose on a mechanic's lien against it and on its cross claim alleging willful exaggeration of that mechanic's lien, and granted the petition of Vintage Flooring & Tile in the proceeding to confirm the arbitration award.

ORDERED that the appeal from so much of the amended order as denied that branch of the motion of D.C.M. of New York, LLC, which was to vacate the arbitration award and granted the petition of Vintage Flooring & Tile to confirm the arbitration award is dismissed, without costs or disbursements; and it is further,

ORDERED that the amended order is affirmed insofar as reviewed, without costs or disbursements.

The appeal from so much of the amended order as denied that branch of the motion of D.C.M. of New York, LLC, which was to vacate the arbitration award and granted the petition of Vintage Flooring & Tile to confirm the arbitration award must be dismissed because the right of direct appeal therefrom terminated with the entry of a judgment in the proceeding (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from those portions of the order are reviewed on the appeal from the judgment (see Matter of Vintage Flooring & Tile, Inc. v DCM of NY, LLC, ____ AD3d ____ [decided herewith]).

The appellant contends that the Supreme Court erred in denying those branches of its motion which were for summary judgment on its cross claim against the defendant Vintage Flooring & Tile (hereinafter Vintage) alleging that Vintage willfully exaggerated the amount of its [*2]mechanic's lien and for summary judgment dismissing Vintage's cross claim to foreclose on its mechanic's lien. However, the issues raised in these cross claims were necessarily decided as part of the arbitrator's determination (see Matter of Vintage Flooring & Tile, Inc. v DCM of NY, LLC, ____ AD3d ____ [decided herewith]; see generally American Ins. Co. v Messinger, 43 NY2d 184; Rudolph's Women's Apparel of Mt. Kisco v Chiappinelli, 167 AD2d 379, 380). Accordingly, the Supreme Court properly denied those branches of the appellant's motion.

CHAMBERS, J.P., SGROI, MILLER and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court