Harrington v. Smith

Harrington v Smith (2016 NY Slip Op 02934)

Harrington v Smith

2016 NY Slip Op 02934

Decided on April 19, 2016

Appellate Division, First 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 April 19, 2016
Friedman, J.P., Andrias, Moskowitz, Kapnick, Webber, JJ.

102377/11 -855B 855A 855

[*1]James J. Harrington, Petitioner-Respondent,

v

Laura Lisa Smith, et al., Respondents-Appellants.

Law Office of Martin D. Novar, New York (Martin D. Novar of counsel), for appellants.

Law Offices of James P. Lynn, New York (James P. Lynn of counsel), for respondent.

Judgment, Supreme Court, New York County (Geoffrey D.S. Wright, J.), entered April 21, 2014, awarding petitioner attorneys' fees pursuant to Lien Law §§ 39 and 39-a, unanimously reversed, on the law, without costs, and the judgment vacated. Appeal from order, same court and Justice, entered April 1, 2014, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. Appeal from order, same court and Justice, entered June 13, 2014, which denied respondents' motion to reargue, unanimously dismissed, without costs, as taken from a nonappealable order.

Attorneys' fees were improperly granted pursuant to Lien Law §§ 39 and 39-a, since this was not an action or proceeding to enforce the lien, and the lien had been discharged without a finding of willful exaggeration (see Goodman v Del-Sa-Co Foods, 15 NY2d 191, 195 [1965] [Lien Law § 39-a "is penal in nature, and must be strictly construed in favor of the person upon whom the penalty is sought to be imposed"] [internal quotation marks omitted]; Wellbilt Equip. Corp. v Fireman, 275 AD2d 162, 167 [1st Dept 2000]; Durand Realty Co., Inc. v Stolman, 197 Misc 208 [Sup Ct, NY County 1949], affd 280 Appellant Div 758 [1st Dept 1952]).

Although respondents failed to raise this issue in opposition to the petition, we reach it, because it presents a legal issue that appears on the face of the record and could not have been avoided if raised at the proper juncture (see Chateau D'If Corp. v City of New York, 219 AD2d 205, 209 [1996], lv denied 88 NY2d 811 [1996]; Rajkumar v Budd Contr. Corp., 77 AD3d 595 [1st Dept 2010]).

No appeal lies from the denial of a motion for reargument (Espinal v City of New York, 107 AD3d 411 [1st Dept 2013]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 19, 2016

CLERK