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Tri-Rail Constr. Corp v J.V. Appelbaum Constr. Corp. 2011 NY Slip Op 33253(U) June 20, 2011 Supreme Court, Queens County Docket Number: 6151/02 Judge: Howard G. Lane Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY Present: HONORABLE HOWARD G. LANE Justice -------------------------------------TRI-RAIL CONSTRUCTION CORP., Plaintiff, -againstJ.V. APPELBAUM CONSTRUCTION CORP., et al., Defendants. -------------------------------------J.V. APPELBAUM CONSTRUCTION CORP., Third-Party Plaintiff, -againstCHARLES N. VENTIMIGLIA and CHARLES N. VENTIMIGLIA, as Executor of the Estate of NATE VENTIMIGLIA, Deceased. Third-Party Defendants. -------------------------------------Papers Numbered Notice of Motion-Affidavits-Exhibits... Opposition............................. Reply.................................. 1-8 9-15 16-19 IAS PART 6

Index No. 6151/02 Motion Date May 31, 2011 Motion Cal. No. 19 5

Motion Sequence No.

Upon the foregoing papers it is ordered that this motion by defendants, J.V. Applebaum Construction ("JVA Construction"), Jack Applebaum a/k/a Jack Applebaum and Valerie Applebaum for an order granting partial summary judgment dismissing plaintiff, Tri-Rail Construction Corp.'s ("Tri-Rail") first, second, fourth, fifth, seventh, eighth, tenth, eleventh, thirteenth, fourteenth and sixteenth causes of action is hereby decided as follows: Summary judgment is a drastic remedy and will not be granted if there is any doubt as to the existence of a triable issue (Andre v. Pomeroy, 32 NY2d 361 [1974]; Kwong On Bank, Ltd. v. Montrose Knitwear Corp., 74 AD2d 768 [2d Dept 1980]; Crowley Milk 1

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Co. v. Klein, 24 AD2d 920 [3d Dept 1965]). Even the color of a triable issue forecloses the remedy (Newin Corp. v. Hartford Acc & Indem. Co., 62 NY2d 916 [1984]). The evidence will be construed in a light most favorable to the one moved against (Bennicasa v. Garrubo, 141 AD2d 636 [2d Dept 1988]; Weiss v. Gaifield, 21 AD2d 156 [3d Dept 1964]). The proponent of a motion for summary judgment carries the initial burden of presenting sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). Once the proponent has met its burden, the opponent must now produce competent evidence in admissible form to establish the existence of a triable issue of fact (see, Zuckerman v. City of New York, 49 NY2d 557 [1980]). It is well settled that on a motion for summary judgment, the court's function is issue finding, not issue determination (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]; Pizzi by Pizzi v. Bradlee's Div. of Stop & Shop, Inc., 172 AD2d 504, 505 [2d Dept 1991]). However, the alleged factual issues must be genuine and not feigned (Gervasio v. DiNapoli, 134 AD2d 235 [2d Dept 1987]). The role of the court on a motion for summary judgment is to determine if bona fide issues of fact exist, and not to resolve issues of credibility (Knepka v. Tallman, 278 AD2d 811 [4th Dept 2000]). At the outset, the Court notes that the parties agree that the first cause of action seeking foreclosure on a mechanic's lien has already been dismissed by an Order of the Court dated July 7, 2003 and as such, the first cause of action is no longer viable. Accordingly, partial summary judgment is granted on the first cause of action. Moving defendants established a prima facie case that there are no triable issues of fact with regard to plaintiff's second, fifth, eighth, eleventh and fourteenth causes of action for conversion of trust funds pursuant to New York Lien Law

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