Opinion
Index No. 515539/2023
08-17-2023
G-Builders/F-INT. LLC, Plaintiff, v. Reliable Plumbing NYC Corp., Defendant.
Dilworth Paxson LLP, New York City (Yonit Caplow, of counsel), for Plaintiff (Petitioner). Polsinelli PC, New York City (Aaron E. Zerykier, of counsel), for Defendant (Respondent).
Unpublished Opinion
Dilworth Paxson LLP, New York City (Yonit Caplow, of counsel), for Plaintiff (Petitioner).
Polsinelli PC, New York City (Aaron E. Zerykier, of counsel), for Defendant (Respondent).
AARON D. MASLOW, J.
The following numbered papers were read on this motion:
Submitted by Plaintiff (Petitioner):
NYSCEF Doc No. 1: Summons
NYSCEF Doc No. 2: Verified Complaint
NYSCEF Doc No. 3: Affidavit of George Figliolia
NYSCEF Doc No. 4: Exhibit A - Notice of Mechanic's Lien, Correspondence
NYSCEF Doc No. 5: Exhibit B - Bond
NYSCEF Doc No. 6: G-Builders/F-Int. LLC's Memorandum of Law in Support of Motion to Discharge Mechanic's Lien and Release Bond
NYSCEF Doc No. 9: Affirmation of Yonit A. Caplow, Esq. in Support of Motion to Discharge Mechanic's Lien and Release Bond
NYSCEF Doc No. 11: Affidavit of Service
Submitted by Court:
NYSCEF Doc No. 10: Order to Show Cause Commencing Motion to Vacate and Discharge Mechanic's Lien
Submitted by Defendant (Respondent):
NYSCEF Doc. No. 12: Notice of Cross-Motion to Dismiss Complaint
NYSCEF Doc. No. 13: Memorandum of Law in Opposition to Motion to Discharge Mechanic's Lien and Release Bond and in Support of Cross-Motion to Dismiss Complaint
Upon the foregoing papers and having heard oral argument on the record from counsel for all parties, the within motion is determined as follows.
I. Background
Plaintiff G-Builders/F-Int. LLC (hereinafter "G-Builders") is a general contractor. Defendant Reliable Plumbing NYC Corp. (hereinafter "Reliable Plumbing") was, under a private improvement contract with G-Builders, a subcontractor retained to perform plumbing and sprinkler work in the amount of $136,500 on the property located at 55 Water St, borough of Brooklyn. Reliable Plumbing allegedly abandoned the project prior to completing the work, despite being paid approximately $50,000, according to G-Builders. Reliable Plumbing subsequently filed a notice of mechanic's lien in the amount of $86,370. (See NYSCEF Doc No. 2 ¶¶ 1-7; NYSCEF Doc No. 5.) In an effort to protect the owners of the real property, G-Builders paid for a bond to satisfy the lien (see NYSCEF Doc No. 2 ¶¶ 19; NYSCEF Doc No. 5). G-Builders has now brought an action to vacate Reliable Plumbing's lien (see NYSCEF Doc No. 2). Both G-Builders and Reliable Plumbing have moved this Court for relief.
II. G-Builders' Arguments
G-Builders has filed a motion seeking to discharge Reliable Builders' mechanic's lien and to release the bond it paid, alleging that the respective notice of lien is invalid as having failed to precisely comply with section 9 of the Lien Law, specifically the requirement that the notice of lien must state, "The labor performed or materials furnished and the agreed price or value thereof, or materials actually manufactured for but not delivered to the real property and the agreed price or value thereof" (Lien Law § 9 [4]). The relevant portion of § 19 of the Lien Law, concerning the discharge of a lien is as follows:
A lien other than a lien for labor performed or materials furnished for a public improvement specified in this article, may be discharged as follows:
(6) Where it appears from the face of the notice of lien that the claimant has no valid lien by reason of the character of the labor or materials furnished and for which a lien is claimed, or where for any other reason the notice of lien is invalid by reason of failure to comply with the provisions of section nine of this article, or where it appears from the public records that such notice has not been filed in accordance with the provisions of section ten of this article, the owner or any other party in interest, may apply to the supreme court of this state, or to any justice thereof, or to the county judge of the county in which the notice of lien is filed, for an order summarily discharging of record the alleged lien. A copy of the papers upon which application will be made together with a notice setting forth the court or the justice thereof or the judge to whom the application will be made at a time and place therein mentioned must be served upon the lienor not less than five days before such time. If the lienor can not be found, such service may be made as the court, justice or judge may direct. The application must be made upon a verified petition accompanied by other written proof showing a proper case therefor, and upon the approval of the application by the court, justice or judge, an order shall be made discharging the alleged lien of record.
(Id. § 19 [6].)
G-Builders argues that Reliable Plumbing's description of the labor performed and materials furnished, "Supplied and Installed Plumbing Materials, Sprinkler Materials, Etc.," is deficient and warrants discharge of the lien under § 9; also that listing a lump sum was impermissible.
A. Designation of Lump Sum Does Not Substantially Comply with Section 9 of Lien Law
G-Builders points out that the notice of lien "must state explicitly or by plain inference the... agreed price of the labor performed or materials furnished" (Pascual v Greenleaf Park Land Co., 245 NY 294, 298 [1927], citing Finn v Smith, 186 NY 465 [1906]; see NYSCEF Doc No. 6 ¶ 5). Since Reliable Plumbing only set forth a lump sum rather than itemizing the material furnished and labor performed, G-Builders claims that the notice was insufficient and must be vacated. G-Builders also claims that the notice is deficient because it must specifically show that "the value or agreed price of the labor then performed and the materials then furnished was the value or agreed price of all the labor and materials which were to be furnished by the claimant" (Pascual, 245 NY at 299 [emphasis added]). In other words, Reliable Plumbing had to show that the value of the work that was performed is equal to the value of the total work which was supposed to be performed, which G-Builders alleges they did not. Similarly, by setting forth a lump sum, Reliable Plumbing also failed to identify in sufficient detail what labor it performed and was unpaid for, and the same for materials furnished separately, that had a value of $86,370 (outstanding balance of subcontract award). (See NYSCEF Doc No. 6 ¶¶ 6-8.) G-Builders gives examples of case law in which courts have discharged liens for designating a lump sum. In Charles S. Utterson, Inc. v Snyder (224 AD 471 [1st Dept 1928]), the court discharged a notice of lien that failed to separate out labor and materials, and further failed to identify the materials and labor performed that had gone unpaid (see NYSCEF Doc No. 6 ¶ 9). G-Builders argues that this is the case here and, therefore, the provision of a lump sum alone renders the notice of lien defective; it must be vacated.
B. Description of Labor Performed/Materials Furnished is Insufficient
While dedicating most of their memorandum to the technical deficiencies present in the notice of lien containing a lump sum unpaid, at oral argument, however, G-Builders seemingly abandoned this argument and instead chose to focus on the vagueness of the notice as a grounds for its insufficiency. In San Marco Const. Corp. v Gillert (15 Misc.2d 208, 211 [Sup Ct, Westchester County 1958]), a notice of lien stating only "equipment and machinery" to describe the labor performed was deemed insufficient and too vague to comply with Lien Law § 9. G-Builders argues that the description Reliable Plumbing provided was insufficient. Given the similarity of the notice of lien's description for work performed ("Supplied and Installed Plumbing Materials, Sprinkler Materials, Etc.") to that of the notice of lien in San Marco Const. Corp., G-Builders concludes that the lien should be discharged. (See NYSCEF Doc No. 6 ¶ 16-20.)
III. Reliable Plumbing's Arguments
In response, Reliable Plumbing submitted opposition to G-Builders' motion and cross-moved to dismiss the latter's complaint and this action.
A. Procedural Defects Warrant Dismissal of Action
Reliable Plumbing offers highly technical arguments as a rationale for their motion to dismiss. Section 19 (6) of the Lien Law requires that "[t]he application [discharging an alleged lien] must be made upon a verified petition...." Reliable Plumbing claims that G-Builders failed to bring a special proceeding according to the methods prescribed in CPLR 402, which governs how special proceedings should be commenced by petition. Rather, G-Builders brought on its application to discharge the lien as an action. Reliable Plumbing does not specifically discuss how G-Builders' verified complaint conflicts substantively with the requirements of CPLR 402. Furthermore, while Reliable Plumbing also claims that G-Builders "fails to state a claim" and concludes that their "claims must be dismissed" as a result, Reliable Plumbing does not point to gaps or inconsistencies in G-Builders' complaint that support such a conclusion.
B. Reliable Plumbing's Notice of Lien Contains Sufficient Description of Labor Performed/Materials Furnished
In opposition to G-Builders' motion, Reliable Plumbing asserts that a mechanic's lien contains sufficient description of the work provided when it provides "enough information so the owner may, upon inquiry, ascertain whether the material has been actually furnished or not, and the value of the same" (Mahan Const. Corp. v 373 Wythe Realty, Inc., 31 Misc.3d 252, 254 [Sup Ct, Kings County 2011]; see NYSCEF Doc No. 13 at 4). Reliable Plumbing argues that the notice of lien provided more than sufficient notice, as it described the work as "Supplied and Installed Plumbing Materials, Sprinkler Materials, Etc." (see NYSCEF Doc No. 13 at 4). In fact, Reliable Plumbing claims, New York courts have found similar descriptions of liens sufficient, and refers to the description of the lien in Mahan Const. Corp. (see id. [validity of notice of lien upheld based on description of "supply and install structural steel and deck"]). Furthermore, Reliable Plumbing cites to § 23 of the Lien Law for the proposition that the Lien Law "is to be construed liberally to secure the beneficial interests and purposes thereof. A substantial compliance with its several provisions shall be sufficient for the validity of a lien." (See NYSCEF Doc No. 13 at 4.) Reliable Plumbing does this to show that since G-Builders' affidavit acknowledged Reliable Plumbing agreeing to provide "a very specific scope of work concerning both the plumbing and sprinkler aspects of the Project" (quoting NYSCEF Doc No. 3 ¶ 4), the mechanic's lien clearly contained a description of the work provided that gave "enough information so that Petitioner may, upon inquiry, ascertain whether the material has been actually furnished or not, and the value of the same" (NYSCEF Doc No. 13 at 4, quoting Mahan Const. Corp., 31 Misc.3d at 254).
Reliable Plumbing also claims that G-Builders mischaracterized the cited case law. In San Marco Constr. Corp. (15 Misc.2d 208), the description for the basis of the lien in that case was found to be insufficient and the lien invalid. The lien description stated only "the labor performed was 'Equipment and machinery,' when, in fact, it only "hired out equipment which does not constitute labor" (id. at 211). In the instant case, Reliable Plumbing properly described its work and materials provided. Next, Reliable Plumbing claims that G-Builders mischaracterized the case law in Charles S. Utterson, Inc. (224 AD 471), arguing that the court was interpreting a lien form pursuant to a predecessor version of Lien Law § 9. Reliable Plumbing argues that the Charles S. Utterson, Inc. court never held what G-Builders claims it did. Reliable Plumbing claims the court found the notice of lien deficient only because it appeared that the lien sought to comply with a prior version of Lien Law §9 that required a description of the work to be furnished. Reliable Plumbing goes further in arguing that Pascual (245 NY 294) makes clear that under the prior version, courts were constrained to find in that manner whenever a lump sum did not specify work performed from work to be performed. (See NYSCEF Doc No. 13 at 4-5.)
In sum, Reliable Plumbing claims G-Builders failed to show that the lien was facially defective and argues that there is more than enough information so that the owner may, upon inquiry, ascertain whether the material/labor was furnished and the value of same.
IV. Discussion
A. G-Builders' Procedural Defects Are Insignificant and Curable
This Court will first address Reliable Plumbing's arguments that G-Builders did not file a verified petition or comply with the requirements of special proceeding according to Lien Law §19 and CPLR 402, and that the action should be dismissed as a result. This case is properly designated as a special proceeding on the New York Unified Court System's electronic filing platform. However, even if it were not,
The petition in a special proceeding is analogous to the complaint in an action. Indeed, CPLR 402 specifies that the same pleading rules that apply to a complaint also govern the petition. These rules are to be found in CPLR Article 30, especially CPLR 3013 through 3023. Thus, the petition must notify the opponent of the nature of the claim and frame the issues. See NY Adv. Comm. on Prac. & Proc., Third Prelim. Rep., Legis. Doc. No. 17, p. 158 (1959).... It should be noted that the statutes governing particular special proceedings may impose individualized pleading rules. See, e.g., NY Mental Hygiene Law § 81.08 (proceeding for appointment of guardian for personal needs or property management); NY Real Prop. Actions & Proceed. Law § 741 (summary proceeding to recover possession of real property).
CPLR 402 contains no requirement that the petition be verified, but this is certainly an option. See CPLR 3020. The statute governing a particular special proceeding, however, may require that the pleadings be verified. See, e.g., CPLR 7804(d); Real Prop. Tax Law § 706(2).
(Vincent C. Alexander, Prac Commentaries, McKinney's Cons Laws of NY, CPLR C402:1.) In any event, the complaint is verified in the instant action, and the fact that a pleading is called a "complaint" rather than a "petition" is hardly a procedural defect that warrants the dismissal of the action. As stated in the CPLR, "Except where otherwise prescribed by law, procedure in special proceedings shall be the same as in actions, and the provisions of the civil practice law and rules applicable to actions shall be applicable to special proceedings.... If a court has obtained jurisdiction over the parties, a civil judicial proceeding shall not be dismissed solely because it is not brought in the proper form, but the court shall make whatever order is required for its proper prosecution." (CPLR 103 [b], [c]; see also Esformes v Brinn, 52 A.D.3d 459 [2d Dept 2008].)
This Court elects to deem this action a special proceeding seeking to discharge the subject mechanic's lien, the summons and complaint the notice of petition and petition, and Reliable Plumbing's opposition papers the answer and a cross-petition to dismiss. Although denoted as a "Plaintiff," G-Builders is deemed the Petitioner herein; similarly, Reliable Plumbing is deemed the Respondent, rather than the "Defendant." The issues addressed by the parties will be determined in that construct. (See Port Chester Elec. Constr. Co. v Atlas, 40 N.Y.2d 652, 653 [1976]; Esformes, 52 A.D.3d 459; Sessions v Brunswick Hosp. Ctr., 112 A.D.2d 238 [2d Dept 1985]; Matter of Jericho Jewish Ctr. v Hibner, 28 Misc.2d 458 [Sup Ct, Nassau County 1960].)
Reliable Plumbing also attempts to have this special proceeding dismissed based on G-Builders' alleged failure to state any valid cause of action. However, Reliable Plumbing does not explain how the allegations contained in G-Builders' complaint, even if taken as true, fail in establishing G-Builders' entitlement to relief under the Lien Law. Alternatively, Reliable Plumbing does not offer any facts that challenge the availability of relief under law for G-Builders. In other words, Reliable Plumbing does no more than make a conclusory assertion that G-Builders has failed to state a valid cause of action.
B. Lump Sum is Permissible
On the merits, G-Builders relies on reasoning that hinges on the technicalities of the necessary components of a notice of lien, and attempts to ultimately persuade this Court to invalidate the subject lien based on an overall highly technical argument. However, given that the Lien Law requires a notice such as the one in this action, we must not overlook the significance of such a notice being potentially improper. Lien Law § 19 (6) states, "Where it appears... that the claimant has no valid lien by reason of... failure to comply with the provisions of section nine of this article... the owner or any other party in interest, may apply... for an order summarily discharging of record the alleged lien." The relevant provisions from § 9 invoked in this motion are: "(4) The labor performed or materials furnished and the agreed price or value thereof, or materials actually manufactured for but not delivered to the real property and the agreed price or value thereof," and "(5) The amount unpaid to the lienor for such labor or materials" (Lien Law § 9 [4], [5]).
Prior to the amendment of § 9, subdivision 4, in 1916, it was held that a notice of lien which stated a lump sum unpaid on labor and materials "furnished and to be furnished" was invalid as failing to state an agreed price or value of labor/materials provided at the time of filing the notice (see Pascual, 245 NY at 296 [citing Bossert v Fox, 85 NY 308 (1881)]). However, as § 9, subdivision 4 now reads, Reliable Plumbing must show only that the value of the work that was performed is at least equal to the value of the total work which was supposed to be performed (see Pascual, 245 NY at 296-97). In Charles S. Utterson, Inc. (224 AD 471), the lien was invalidated since the lienor claimed a stated amount but failed to show whether it was for labor performed or to be performed, or for materials furnished or to be furnished. Reliable Plumbing has, in fact, delineated that "agreed price and value of labor performed" and "total agreed price and value" are both equal to $136,500.00 (NYSCEF Doc No. 4 at 5). In this case, Reliable Plumbing also indicated that the "amount unpaid" is $86,370.00. Therefore, the deficiencies present in Charles S. Utterson, Inc. and Pascual are not present here. The description of the labor/material for which the unpaid amount is owed is contained in the description of the labor/materials already provided. Therefore, G-Builders' proposition that lump sums are insufficient is inaccurate.
Further support for the inapplicability of Pascual to the instant case comes from Goldberger-Raabin, Inc. v 74 Second Ave. Corp. (252 NY 336, 344 [1929]), wherein it was stated:" Pascual v. Greenleaf Park Land Co. (245 NY 294) is unlike this case. There the notice of lien failed to state the value of the work performed or the amount due for such work. The figures given may have included work yet to be performed. 'The amount unpaid to the lienor for such labor and material is Four Thousand eight hundred and ten dollars.' 'Such labor' referred to the previous statements in the notice which included work performed and to be performed. We said that the part referring to work to be performed could not be rejected 'if the notice fails elsewhere to state, by implication, at least, the agreed price or value of the labor performed and materials furnished, exclusive of labor to be performed or materials to be furnished in the future.' "
Furthermore, in San Marco (15 Misc.2d at 211), the lien was invalidated because its description stated that the labor performed was equipment and machinery, which was insufficient because the hiring out of equipment does not constitute labor. In the case at bar, Reliable Plumbing described its labor and material furnished as "Supplied and Installed Plumbing Materials, Sprinkler Materials, Etc." (NYSCEF Doc No. 4 at 5). Hence the amount of the agreed price and value of the labor performed and material furnished was $136,500, and the unpaid amount was $86,370. These details sufficed to provide the monetary figures called for by the statute.
C. Reliable Plumbing's Notice of Lien Substantially Complies with Lien Law § 9
Finally, we turn to G-Builders' main argument that Reliable Plumbing's description of the labor performed and materials furnished was insufficient under Lien Law § 9, subdivision 4. A mechanic's lien contains sufficient description of the work provided when it provides "enough information so the owner 'may, upon inquiry, ascertain whether the material has been actually furnished or not, and the value of the same'" (Mahan Construction Corp., 31 Misc.3d at 254). The court in Mahan Construction Corp. found the lien description sufficient when it identified the labor performed and the materials furnished as "supply and install structural steel and deck" and the material furnished as "structural steel" (id.). If these phrases were deemed sufficient to allow the property owner to determine whether the material had been furnished or not and their value, Reliable Plumbing's description that it "Supplied and Installed Plumbing Materials, Sprinkler Materials, Etc." would likewise suffice as it performs the same function of providing information as in Mahan Construction Corp. Further, if § 23 of the Lien Law provides that "[the Lien Law] is to be construed liberally to secure the beneficial interests and purposes thereof" and "A substantial compliance with its several provisions shall be sufficient for the validity of a lien," then Reliable Plumbing has gone beyond providing "enough information so the owner 'may, upon inquiry, ascertain whether the material has been actually furnished or not, and the value of the same'" (Mahan Construction Corp., 31 Misc.3d at 254 [emphasis added]; see also Marson Contracting Co., Inc. v All Rock Crushing Inc., 2008 NY Slip Op. 32559(U) *4 [Sup Ct, NY County 2008] ["fracturing, excavation and removal of rock using hydraulic rock hammers, hydraulic excavators and hydraulic rock drills" sufficed]).
Additional support for the application of substantial compliance comes from Murdock v Kleist (250 AD 127, 128 [2d Dept 1937]), wherein the court held: "Claimant's failure to state in his notice of lien any alleged agreed price or value of the architectural plans and specifications as materials furnished, apart from the labor performed in their preparation and supervision, was not violative of subdivision 4. The notice as filed was in substantial compliance with the requirements of the statute." (See also EFCO Corp. v Helena Assoc. LLC, 45 A.D.3d 399 [3d Dept 2007] [labor performed or materials furnished and the agreed price or value thereof omitted but total amount of the agreed price and value that was unpaid was set forth].)
Moreover, G-Builders has failed to avail itself of the opportunity to demand a more itemized statement pursuant to Lien Law § 38, which provides:
A lienor who has filed a notice of lien shall, on demand in writing, deliver to the owner or contractor making such demand a statement in writing which shall set forth the items of labor and/or material and the value thereof which make up the amount for which he claims a lien, and which shall also set forth the terms of the contract under which such items were furnished. The statement shall be verified by the lienor or his agent in the form required for the verification of notices in section nine of this chapter. If the lienor shall fail to comply with such a demand within five days after the same shall have been made by the owner or contractor, or if the lienor delivers an insufficient statement, the person aggrieved may petition the supreme court of this state or any justice thereof, or the county court of the county where the premises are situated, or the county judge of such county for an order directing the lienor within a time specified in the order to deliver to the petitioner the statement required by this section. Two days' notice in writing of such application shall be served upon the lienor. Such service shall be made in the manner provided by law for the personal service of a summons. The court or a justice or judge thereof shall hear the parties and upon being satisfied that the lienor has failed, neglected or refused to comply with the requirements of this section shall have an appropriate order directing such compliance. In case the lienor fails to comply with the order so made within the time specified, then upon five days' notice to the lienor, served in the manner provided by law for the personal service of a summons, the court or a justice or judge thereof may make an order canceling the lien.
Reliable Plumbing has substantially complied with Lien Law § 9. If G-Builders felt a more definite statement was required as to the labor performed and materials supplied, or the price and value for each, it could have availed itself of the opportunity to seek same via Lien Law § 38. It did not do so. A § 19 proceeding to discharge the lien should be rejected. (See Marson Contracting Co., Inc. v All Rock Crushing Inc., 2008 NY Slip Op. 32559(U); A. R. T. Ltd. v Simpson, 114 Misc.2d 662 [Civ Ct, NY County 1982].)
"Plaintiffs, in opposition to the defendants' motion and in support of their cross motion argue that Pascual v. Greenleaf Park Land Co., supra, predated the enactment of section 38 of the Lien Law which, defendants speculate was enacted to avoid the harsh result of Pascual, supra" (A. R. T. Ltd. v Simpson, 114 Misc.2d 662, 666 [Civ Ct, NY County 1982]).
V. Conclusion
This Court deems the within action a special proceeding seeking to discharge the subject mechanic's lien, the summons and complaint the notice of petition and petition, and Reliable Plumbing's opposition papers the answer and a cross-petition to dismiss. Although denoted as a "Plaintiff," G-Builders is deemed the Petitioner herein; similarly, Reliable Plumbing is deemed the Respondent, rather than the "Defendant."
On its petition to discharge Respondent (denoted as "Defendant") Reliable Plumbing's lien and release its bond, Petitioner (denoted as "Plaintiff") G-Builders did not sufficiently establish that the lien should be discharged as a matter of law for any alleged deficiencies or misdescriptions.
Accordingly, IT IS HEREBY ORDERED as follows:
This Court DENIES Petitioner G-Builders' petition to vacate the lien and release its bond (Seq. No. 1), GRANTS Respondent Reliable Plumbing's cross-petition to the extent of denying the petition (Seq. No. 2), and dismisses the proceeding. The Clerk shall enter judgment accordingly.