Clifford Broman & Son, Inc. v. Town of Babylon

—In an action to foreclose on a public improvement mechanic’s lien, the plaintiff appeals from an order of the Supreme Court, Suffolk County (D’Emilio, J.), dated December 1, 1994, which denied its motion for summary judgment against the defendants Town of Babylon and Hi-Tech Mechanical, Inc.

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 NY2d 557). O’Brien, J. P., Ritter, Friedmann and Goldstein, JJ., concur.