Greenspan v. Amsterdam

— In an action to foreclose a mechanic’s lien, the defendant appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Westchester County (Owen, J.), entered April 24, 1987, as dismissed his counterclaims.

The record supports the trial court’s finding that the defendant owner’s actions demonstrated a failure to facilitate the plaintiff builder’s performance under the contract (see, Savin Bros. v State of New York, 62 AD2d 511 , affd 47 NY2d 934 ). Further, the record supports the court’s conclusion that the defendant’s locking out of the plaintiff from the work site constituted a material breach of the contract, justifying the plaintiff’s stoppage of work on the project (see, 22 NY Jur 2d, Contracts, §§ 365, 377; see also, Felix Contr. Corp. v Oakridge Land & Prop. Corp., 106 AD2d 488 , lv denied 66 NY2d 606 ). The plaintiff’s election not to waive this breach is evidenced by his filing of a mechanic’s lien only days after the breach (see, 22 NY Jur 2d, Contracts, § 393, at 304; cf., General Supply & Constr. Co. v Goelet, 241 NY 28 , 35). Moreover, because of his conduct, the defendant may not recover damages incurred in completing the job (see, e.g., Felix Contr. Corp. v Oakridge Land & Prop. Corp., supra; see generally, 22 NY Jur 2d, Contracts, § 379).

Finally, we find no basis to disturb the court’s finding that the plaintiff did not willfully exaggerate the lien (see, Sound-wall Constr. Corp. v Moncarol Constr. Corp., 56 Misc 2d 892 , 897-898). Lawrence, J. P., Rubin, Spatt and Sullivan, JJ., concur.