| Langston v Triboro Contr., Inc. |
| 2007 NY Slip Op 07473 [44 AD3d 365] |
| October 9, 2007 |
| Appellate Division, First Department |
| Jeffrey Langston, Appellant, v Triboro Contracting, Inc., etal., Respondents. |
—[*1] Rivelis, Pawa & Blum, LLP, New York (Howard Blum of counsel), for Triboro Contracting,Inc. and Paul Gambino, respondents. Greenblatt Lesser LLP, New York (Robert I. Lesser of counsel), for Sabina Ryman,respondent.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered June 15, 2007,which, in an action to recover money paid pursuant to a home improvement contract, insofar asappealed from, denied plaintiff home owner's motion for partial summary judgment on his causesof action against defendant contractor for diversion of Lien Law article 3-A trust funds,unanimously affirmed, with costs.
We reject plaintiff's argument that he is entitled to return of the money paid to defendantsimply because the money, paid over time with checks, admittedly was never deposited into anescrow account in a bank, as required by Lien Law § 71-a (4), but instead was immediatelycashed. The primary purpose of Lien Law article 3-A is to ensure that those who have expendedlabor and materials to improve real property at the direction of an owner or a general contractorreceive payment for the work actually performed (Aspro Mech. Contr. v Fleet Bank, 1 NY3d 324, 328 [2004]). Thus,the issue, in deciding whether there has been a diversion of trust funds, is not whether the fundshave been deposited in a bank, but whether the funds have actually been used to paysubcontractors, suppliers and laborers (cf. 1 NY3d at 329). Concur—Lippman,P.J., Tom, Marlow, Gonzalez and Malone, JJ.