Opinion
December 29, 1995
Appeal from the Supreme Court, Suffolk County (D'Emilio, J.).
Ordered that the order is affirmed, with costs.
The plaintiff's lien was valid only as to any amount still due and unpaid to the subcontractor, Yellowstone Equipment Inc. ( see, Ace Contr. Co. v Garfield Arma Assocs., 148 Misc.2d 475, 477). Since a triable issue of fact exists as to whether the subcontractor was owed any money at the time the plaintiff's lien was filed, the plaintiff's motion for summary judgment was properly denied ( see, CPLR 3212 [b]; Zuckerman v City of New York, 49 N.Y.2d 557). O'Brien, J.P., Ritter, Friedmann and Goldstein, JJ., concur.