Opinion
2089
November 6, 2003.
Order, Supreme Court, New York County (Karla Moskowitz, J.), entered January 6, 2003, which, to the extent appealed from as limited by the brief, denied defendants' motion for partial summary judgment dismissing claims for certain damages sought by plaintiffs, unanimously modified, on the law, to dismiss plaintiffs' claims for unpaid mechanic's liens, without prejudice to subsequent claims for indemnification, and to strike their claims for liquidated damages, and otherwise affirmed, without costs.
Charles E. Williams, III, for plaintiffs-respondents.
Robert J. Patchen William R. Fried, for defendants-appellants.
Before: Nardelli, J.P., Mazzarelli, Sullivan, Rosenberger, Lerner, JJ.
Defendants have failed to demonstrate that amounts owed by plaintiffs to their subcontractors are not recoverable. Contrary to defendants' interpretation, we do not construe plaintiffs' bill of particulars as representing that they owe no money to any subcontractor. Moreover, the charts relied upon by defendants are far from clear in delineating the extent of plaintiffs' claims. As to recovery for mechanic's liens filed by subcontractors, it has not been shown that plaintiffs have paid, or intend to pay, such liens (see Mars Assoc. v. New York City Educ. Constr. Fund, 126 A.D.2d 178, 191, lv dismissed 70 N.Y.2d 747). Thus, these claims should be dismissed without prejudice to subsequent claims predicated upon indemnification (see McDermott v. City of New York, 50 N.Y.2d 211, 216). Finally, the contract does not unambiguously indicate that the liquidated damages provision was intended to apply to abandonment or termination of the contract, not merely delay in completion (see City of Elmira v. Walter, 76 N.Y.2d 912, 914) and, therefore, the claims for liquidated damages should be dismissed.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.