Opinion
INDEX NO. 507951/2019
10-23-2019
PILOT CONTRACTING INC., Individually and on behalf all of Beneficiaries of the Trusts hereinafter alleged, Plaintiff, v. FROST CONTRACTORS CORP., 145 HUNT LLC, People of the State of New York, and John Doe #1 through 24, inclusive, the last 24 named Defendants being unknown and named fictitiously, the parties being all persons having or claiming an interest in or Lien upon the premises hereinafter described, Defendants
NYSCEF DOC. NO. 58 Decision and order ms # 1 PRESENT: HON. LEON RUCHELSMAN
The defendant has moved seeking to discharge and cancel a Mechanic's Lien filed by the plaintiff. The plaintiff opposes the motion. Papers were submitted by the parties and arguments held. After hearing all the arguments this court now makes the following determination.
The defendant 145 Hunt LLC is the owner of property, a vacant lot located at 145 Huntington Street in Kings County. 145 Hunt entered into a contract with defendant Frost Contractors Corp., to construct a three story building on the lot. Frost entered into a contract with subcontractor Pilot Contracting Inc., the plaintiff in this action. The plaintiff claims it is owed additional sums in the amount of $125,000 and has placed a Mechanic's Lien on the property. The defendant owner now moves for summary judgement seeking to vacate and dismiss the lien on the grounds the plaintiff has failed to demonstrate it is owed any fees.
On December 4, 2018 Pilot claimed it had completed the work and sought full payment. Thus, Pilot essentially walked off the job after claiming there was nothing more to do. This prompted Frost to fire Pilot since according to Frost there was significant work that remained outstanding. Indeed, Pilot does not argue the cement work, steel work, elevation work and water proofing and insulations, roof and roofing details and parapet details, safety code and Department of Building requirements and Plan Specification requirements as detailed in a letter submitted within Exhibit J of the motion to cancel the Mechanic's Lien was ever really completed. The plaintiff presents two arguments why the lien cannot be summarily cancelled. First, plaintiff argues any summary dismissal of the lien does not satisfy the requirements of Lien Law §19. Second, plaintiff argues the disposition of the lien must await a trial and cannot be summarily dismissed.
The defendant counters the requirements of Lien Law §19 do not yet begin where the lien is improperly filed or exaggerated.
However, whether the lien amount is exaggerated is generally a question of fact (Executive Towers at Lido LLC v. Metro Construction Services, 303 AD2d 545, 756 NYS2d 461 [2d Dept., 2003]). As the court stated in Aaron v. Great Bay Contracting Inc., 290 AD2d 326, 736 NYS2d 359 [1 Dept., 2002] "the validity of the lien plainly turns on a dispute as to whether respondent has completed the work required by the contract, and, accordingly, must await trial of the foreclosure action" (id). Thus, a determination that a lien was willfully exaggerated generally cannot be decided on a summary judgement motion (see, Scarano Architect, PLLC v. 6322 Holding Corp., 35 Misc3d 1228(A), 954 NYS2d 761 [Supreme Court Kings County 2012]). The case cited by defendant in the Reply Affirmation, LMF-RS Contracting Inc., v. Nevzet Kaljic, 126 AD3d 436, 2 NYS3d 351 [1 Dept., 2015] did hold that a summary disposition regarding exaggeration could be made where the evidence was "conclusive" (id).
In this case it cannot be stated the amount of the exaggeration of the lien, if any, is conclusive. The defendant has presented an itemized list of unfinished work, as noted, however, there is no basis for a summary determination whether the amount of the lien is exaggerated. Indeed, where there is a dispute concerning the amount owed then summary judgement is improper (Turbo Carpentry Corp., Brancadoro, 21 AD3d 479, 800 NYS2d 566 [2d Dept., 2005]). Since the precise work left unfinished and the value of that work is in dispute a summary determination cannot be made at this time. Therefore, the motion seeking summary judgement vacating the Mechanic's Lien is denied.
So ordered. DATED: October 23, 2019
Brooklyn N.Y.
ENTER:
/s/_________
Hon. Leon Ruchelsman
JSC