Costello v. Geffen , 236 N.Y.S.2d 93 ( 1962 )

Bernard S. Meyer, J.

This motion to require that a statement be furnished under section 76 of the Lien Law is granted. The objection that the motion was not timely is not well taken since subdivision 5 of section 76 requires only three days’ notice of motion. The objection to venue is likewise nonavailing since under subdivision 5 the application may be made to any court having jurisdiction of an action to enforce a trust and section 1308 of the Civil Practice Act expressly provides that venue of such an action shall be governed by section 182. Since petitioner resides in Nassau County, the requirements of section 182 are met. The objection that no funds are due petitioner is answered by Matter of Fontaine Bleau Swimming Pool Corp. v. Aquarama Swimming Pool Corp. (27 Misc 2d 315). The objection that there is no trust fund is not sustained for respondent admits that a mortgage on the property was executed to a private individual. Respondent’s allegation that petitioner does not qualify under section 13 of the Lien Law is conclusory; nothing in the papers submitted establishes such lack of qualification as a matter of fact.