MATTER OF DUCE CONSTR. CORP. v. COMPACT HVAC

Full title: IN THE MATTER OF DUCE CONSTRUCTION CORPORATION, Petitioner-Contractor, For…

Court: Supreme Court of the State of New York, New York County

Date published: Nov 18, 2009

2009 N.Y. Slip Op. 32990 (N.Y. Sup. Ct. 2009)

Opinion

110629/09.

November 18, 2009.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MARILYN SHAFER, J.

BACKGROUND

Petitioner Duce Construction Corporation (Duce) moves, pursuant to section 19 (6) of the Lien Law, for an order discharging and/or cancelling the mechanic's liens filed by respondent Compact HVAC, Inc. d/b/a Castro Co. (Castro).

Between the summer of 2006 through the spring of 2008, Duce, a general contractor, entered into a series of purchase orders with Castro, a subcontractor, whereby Castro was to provide, among other things, ductless HVAC units and controllers for property located at 18 West 10^th Street, New York, New York (10^th Street Property). The work being performed at the 10^th Street Property is undisputed to be a residential home improvement project.

Duce alleges that, as the work progressed on the 10^th Street Property, Castro became deficient in fulfilling some of its contractual obligations, and Duce informed Castro that it was in material breach of the contract. After being informed of Duce's position, Castro filed a mechanic's lien against the 10^th Street Property, in the sum of $23,023.96, in which the owner of the property is identified as "Hilda Hollyer, Peter Gordon Hollyer, Lysette Hollyer Margaret Hollyer." According to the deed for the 10^th Street Property (Petition Ex. B), the owner of the property from July, 1993, until February, 2009, was Howard Solomon. In January, 2009, the 10^th Street Property was transferred, by deed of trust, from Howard Solomon to the Andrew Solomon 2009 Trust. Petition Ex. C. Allegedly, at no time was the 10^th Street Property owned by the persons listed as the owners on the mechanic's lien.

Several months after the commencement of the 10^th Street Property project, Duce entered into another series of purchase orders with Castro to provide labor and materials for a different home improvement project located at 1060 Fifth Avenue, Apt. 12A, New York, New York (Fifth Avenue Property). Duce allegedly found deficiencies with Castro's work in this project as well, and so informed Castro. Castro then filed a notice of mechanic's lien against the Fifth Avenue Property on November 21, 2008, in the sum of $10,565.00. Duce paid $10,565.00 into the court on December 8, 2008, pursuant to section 20 of the Lien Law. Petition Ex. E.

It is undisputed that Castro never possessed a license to perform home improvement work.

In its opposition, Castro asserts that, as a subcontractor, it does not require a home improvement license to maintain an action on its contracts, and admits that, if the documents provided by Duce are legitimate, its mechanic's lien on the 10^th Street Property is jurisdictionally defective in misidentifying the true owner of the property.

DISCUSSION

The misidentification of an owner on a mechanic's lien renders such lien jurisdictionally defective and void as a matter of law, and the lien must be summarily discharged. Long Industries Construction Corp. v Appelaniz, 298 AD2d 309 (1^st Dept 2002); Matter of Kleet Lumber Co. (DMC Management), 197 AD2d 576 (2d Dept 1993). Further, this lien was discharged when Duce paid the amount of the lien into the court. Consequently, the lien on the Fifth Avenue Property is discharged.

Under New York law, an unlicensed home improvement contractor cannot recover for breach of contract or quantum meruit, nor can it foreclose on a mechanic's lien. Administrative Code of the City of New York §§ 20-386-387; B F Building Corp. v Liebig, 76 NY2d 689 (1990); Nicotra v Manger, 64 AD3d 547 (2d Dept 2009); JMT Brothers Realty, LLC v First Realty Builders, Inc., 51 AD3d 453 (1^st Dept 2008).

Castro's argument that subcontractors need not be licensed to maintain suits based on home improvement work is without merit. Section 20-386 (5) of the Administrative Code defines "contractor" to include both prime contractors and subcontractors. Chosen Construction Corp. v Syz, 138 AD2d 284 (1^st Dept 1988) (subcontractor required to plead the existence of a home improvement contractor license in order to maintain a lawsuit based on a breach of the subcontract).

Consequently, Castro may not foreclose on a mechanic's lien on either subject property because it does not possess a valid home improvement contractor license.

CONCLUSION

Based on the foregoing, it is hereby

ORDERED that the mechanic's lien filed by lienor on January 16, 2009 against 18 West 10^th Street, New York, New York, Block 00573, Lot 0033, in the amount of $23,023.96 is discharged; and it is further

ORDERED that the mechanic's lien filed by lienor on November 21, 2008 against 1060 Fifth Avenue, Apt. 12A, New York, New York, Block 01499, Lot 0001, in the amount of $10,565.00 is discharged; and it is further

ORDERED that the undertaking paid by petitioner to discharge the lien filed by lienor against 1060 Fifth Avenue, in the amount of $10,652.99, held in Court Deposit in accordance with section 20 of the Lien Law is released; and it is further

ORDERED that the Clerk of the Court shall enter judgment accordingly.