Opinion
November 20, 1961
In a proceeding pursuant to section 76 Lien of the Lien Law, by a subcontractor of a public improvement to compel the general contractor to comply with the subcontractor's demand for a verified statement setting forth the entries on the general contractor's books or records with respect to the trust created as to said public improvement under article 3-A of the Lien Law, the general contractor appeals from an order of the Supreme Court, Nassau County, dated August 3, 1961, which granted the subcontractor's application and which directed the general contractor to furnish the statement demanded. Order reversed on the law and the facts, with costs, and application denied. Findings of fact insofar as they may be inconsistent herewith are reversed, and new findings are made as indicated herein. The subcontractor's claim admittedly became payable on April 5, 1961. Its request for the statement was mailed to the general contractor on May 2, 1961 and received by it on May 4, 1961. Since less than 30 days had expired after the subcontractor's claim became payable, the request was premature (Lien Law, § 76, subd. 1). The subcontractor was not entitled to an order directing compliance with its request unless the request was "served as provided in this section" (Lien Law, § 76, subd. 5). Furthermore, the affidavit in support of the application was made by an attorney for the applicant; application for orders such as these must be made "upon affidavits of the parties" (Lien Law, § 76, subd. 5). Beldock, Acting P.J., Ughetta, Christ, Pette and Brennan, JJ., concur.