Opinion
12573/2010.
Decided May 25, 2011.
Bhatia Associates, P.C., by Nitin Kaushik, Esq., New York NY, for the Plaintiffs.
Keith R. Singh, P.C., Esq., by Keith R. Singh, Esq., Ozone Park, New York, for the Defendants.
The following papers numbered 1 to 3 read on this motion by plaintiff Sirajul Laskar and plaintiff Bernadit Laskar for an order vacating a mechanic's lien filed by defendant KDK Construction Corp.
Papers Numbered
Notice of Motion — Affidavits — Exhibits........................................1 Answering Affidavits — Exhibits.................................................2 Reply Affidavits.................................................................3Plaintiffs Sirajul Laskar and Bernadit Laskar have moved for an order vacating a mechanic's lien filed by defendant KDK Construction Corp.
On or about August 11, 2008, plaintiff Sirajul Laskar and plaintiff Bernadit Laskar entered into a contract with defendant KDK Construction Corp. whereby the latter obligated itself to construct a two-family house for the former on property located at 70-15 35th Road, Jackson Heights, in Queens County, New York. On or about June 6, 2009, the parties renewed the contract on essentially the same terms. The defendants allegedly breached the contract by, inter alia, (1) failing to construct the house as required by the administrative code and architectural plans, (2) failing to construct the house in a workmanlike manner, and (3) failing to supply labor and materials as required by the contract.
This action for breach of contract ensued on May 18, 2010. On or about June 28, 2010, the defendants answered the complaint and counterclaimed for damages "in excess of $75,000." On July 25, 2010, defendant KDK filed a mechanic's lien against the property. The notice of mechanic's lien states in relevant part: "(12) The time when the last item of work was performed and material furnished was March 30, 2010." An affidavit of service of the notice of lien produced by the plaintiffs states that a process server made service upon the plaintiffs at 70-15 35th Road, Jackson Heights, New York "by depositing a true copy of same, enclosed in a certified registered mail [sic] postpaid, properly addressed wrapper, in an official depository of the United States Postal Service in New York State." However, two affidavits of the service of the notice of lien produced by the defendants state that the process server made personal service upon the plaintiffs at 70-15 35th Road, Jackson Heights, Queens County, New York, on August 2, 2010, by in hand delivery to one plaintiff and by substitute service upon the other plaintiff. The plaintiffs deny living at 70-15 35th Road, Jackson Heights, Queens County, New York, and deny that it was their last known address.
Lien Law section 19(6) permits an owner of property to apply in the Supreme Court for an order summarily discharging of record a lien under certain statutorily specified circumstances ( see, Luckyland (NY), LLC v Core Cont. Constr., LLC, 83 AD3d 1073 [2nd Dept. 2011]; Bryan's Quality Plus, LLC v Dorime , 80 AD3d 639 [2nd Dept. 2011]; Gold Dev. Mgt., LLC v P.J. Contr. Corp. , 74 AD3d 1340 [2nd Dept. 2010]; In re Lowe, 4 AD3d 476 [2nd Dept. 2004]). A motion to discharge a lien summarily, pursuant to Lien Law section 19(6), must be denied where issues of fact exist ( see, 72 Pyrgi, Ltd. v Gkam Corp., 293 AD2d 387 [1st Dept. 2002]).
Lien Law section 10(1), "Filing of notice of lien," in relevant part, provides:
Notice of lien may be filed at any time during the progress of the work and the furnishing of the materials, or, within eight months after the completion of the contract, or the final performance of the work, or the final furnishing of the materials, dating from the last item of work performed or materials furnished. . . ."
See, Uprite Constr. Co., Inc. v Fisher, 74 AD2d 826 [2nd Dept. 1980].
Lien Law section 11, "Service of copy of notice of lien," in relevant part, provides:
Within five days before or thirty days after filing the notice of lien, the lienor shall serve a copy of such notice upon the owner, if a natural person (a) by delivering the same to him personally, . . . or (b) by leaving it at his last known place of residence in the city or town in which the real property or some part thereof is situated, with a person of suitable age and discretion, or (c) by registered or certified mail addressed to his last known place of residence. . . ."
See, L J Plumbing Heating Co., Inc. v Gateway Demolition Corp., 176 Misc 2d 277 [Sup Ct. Queens County 1980].
In the case at bar, the plaintiffs do not have grounds for the summary discharge of the lien pursuant to Lien Law sections 10 and 19(6) because the notice of lien was not invalid on its face ( see, Luckyland (NY), LLC v Core Cont. Constr., LLC, 83 AD3d 1073, supra; Bryan's Quality Plus, LLC v Dorime , 80 AD3d 639 , supra; Gold Dev. Mgt., LLC v P.J. Contr. Corp. , 74 AD3d 1340, supra; In re Lowe, 4 AD3d 476, supra). The notice of lien stated that KDK last furnished work and materials on March 30, 2010, and the notice of lien was dated July 25, 2010. This is a facially valid lien, and the remedy of summary discharge is not available to the plaintiffs ( see, Luckyland (NY), LLC v Core Cont. Constr., LLC, 83 AD3d 1073, supra; Bryan's Quality Plus, LLC v Dorime , 80 AD3d 639 , supra; Gold Dev. Mgt., LLC v P.J. Contr. Corp. , 74 AD3d 1340, supra; In re Lowe, 4 AD3d 476, supra). "[S]ince there was no defect upon the face of the notice of lien, any dispute regarding the validity of the lien must await trial thereof by foreclosure" ( see, In re Lowe, 4 AD3d 476, supra; accord, Luckyland (NY), LLC v Core Cont. Constr., LLC, 83 AD3d 1073, supra; Bryan's Quality Plus, LLC v Dorime , 80 AD3d 639 , supra; Gold Dev. Mgt., LLC v P.J. Contr. Corp. , 74 AD3d 1340, supra), and this Court cannot summarily discharge the lien.
Even if this Court were to look beyond the face of the notice of lien, the plaintiffs did not establish their entitlement to the discharge of the lien on this motion, pursuant to Lien Law section 10. Defendant KDK alleges that it last performed work on the house on March 30, 2010. Defendant Prakash Basdeo ("Basdeo"), the President of the defendant corporation, swears that, on March 30, 2010, he went to the construction site, accompanied by two workers, and did labor, including sanitation, carpentry, and electrical preparation work.
Basdeo, however, swears further, that plaintiff Bernadit Lasker arrived after they had been working for 90 minutes to 2 hours and told them to leave. According to Basdeo, plaintiff Lasker had called the police, and "when the police came she informed us that we had to leave the premises, and that we should not return there. . . ." In view of these sworn allegations, the plaintiffs' production of a document showing that the Department of Buildings conducted a certificate of occupancy inspection on March 22, 2010, does not suffice to eliminate the issue of fact concerning whether defendant KDK did work on March 30, 2010, as it alleges.
Finally in regard to Lien Law section 10, paragraph 5 of the plaintiffs' own complaint alleges that the contract called for the completion of a two-family home. Defendant KDK had an eight-month period beginning from the time it last worked at the construction site to file its notice of lien, not the statutory four-month period applicable to the construction of a one-family home ( see, Cook v Carmen S. Pariso, Inc., 287 AD2d 208 [4th Dept. 2001]; City of Albany Indus. Dev. Agency v Degraff-Moffly/General Contrs., Inc., 164 AD2d 20 [3rd Dept. 1990]). The plaintiffs' attorney is apparently under the misapprehension that the statutory four-month period pertaining to one-family homes applies.
With regard to Lien Law section 11, the summary discharge of a lien, pursuant to Lien Law section 19(6), is not available on the grounds that the lienor did not properly make service upon the property owner. "It is well settled that a court has no inherent power to vacate or discharge a notice of lien except as authorized by Lien Law § 19(6) . . ." ( In re Lowe, 4 AD3d 476, supra). In any event, although the affidavit of service produced by the plaintiffs does not give the date that service was made, it was notarized on July 30, 2010, well within the period for service established by Lien Law section 11.
The Court notes that Article 2 of the Lien Law, pertaining to mechanics' liens, "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" (Lien Law § 23; see, Fane v Armani Plumbing and Mechanical, Inc., 168 AD2d 143 [3rd Dept. 1991]; see, e.g., Mussen v Franklin Sq. Assocs., V., LLC, 22 AD3d 1022 [3rd Dept. 2005]).
Furthermore, although the plaintiffs deny living at 70-15 35th Road, Jackson Heights, Queens County, New York, and deny that it was their last known address, an "information form" attached to the parties' contract, signed by plaintiff Sirajul Laskar, gives an address for the plaintiffs as 70-15 35th Road, Jackson Heights, Queens County, New York. Moreover, the affidavits of the process server produced by the defendants state that personal service upon the plaintiffs was made at 70-15 35th Road, Jackson Heights, Queens County, New York, by in hand delivery upon one plaintiff and by substitute service upon the other plaintiff.
The conflicting affidavits of the plaintiffs and the process server have created issues of fact and credibility, and the lien cannot be summarily discharged.
Accordingly, the motion is denied.
The foregoing constitutes the decision, order, and opinion of the Court.