JT & T Air Conditioning Corp. v. BG National P & H Inc. , 740 N.Y.S.2d 856 ( 2002 )

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered March 14, 2001, which denied the motion of defendant BG National Plumbing & Heating, Inc. (BG National) for an extension of time to file an answer to the complaint and granted plaintiff leave to move for, inter alia, a default judgment, and judgment, same court and Justice, entered September 21, 2001, which, to the extent appealable, awarded plaintiff costs, including attorneys’ fees, pursuant to 22 NYCRR 130-1.1, unanimously affirmed, with costs. Appeal from that portion of the aforesaid September 21, 2001 judgment awarding plaintiff damages in the principal amount of $65,000, plus interest, unanimously dismissed, without costs, as taken from a nonappealable paper, the subject portion of the judgment having been entered on BG National’s default.

The motion court properly found that defendant BG National failed to present a meritorious defense and therefore was not entitled to relief pursuant to CPLR 317 (see, MacMarty, Inc. v Scheller, 201 AD2d 706). Having repeatedly certified to the Comptroller that plaintiff, its subcontractor, was in full compliance with Labor Law § 220, BG National was properly estopped from premising its defense to plaintiff’s claim for payment in this action upon the contradictory allegation that plaintiff had not complied with Labor Law § 220. Nor was there merit to BG National’s remaining defenses.

The court’s determination that BG National’s conduct was frivolous within the meaning of 22 NYCRR 130-1.1 (c), and consequent award of costs, including reasonable attorneys’ fees and disbursements, was not an improvident exercise of discretion and, accordingly, should not be disturbed (see, Matter of Metamorphosis Constr. Corp. v Glekel, 247 AD2d 231).

We have considered BG National’s remaining arguments and find them unavailing. Concur—Nardelli, J.P., Sullivan, Ellerin, Lerner and Rubin, JJ.