Opinion
Index No. 153394/2022 Motion Seq. No. 001
11-22-2022
SASHA REALTY LLC, Petitioner, v. ELTECH INDUSTRIES, INC., Respondent.
Unpublished Opinion
MOTION DATE 04/19/2022
PRESENT: HON. WILLIAM PERRY, Justice
DECISION + ORDER ON MOTION
WILLIAM PERRY, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 10, 11 were read on this motion to/for DISCHARGE/CANCEL MECHANICS LIEN .
Petitioner Sasha Realty LLC commenced this special proceeding to vacate and discharge a mechanic's lien filed by respondent Eltech Industries, Inc.
Background
The following facts are taken from the petition and the accompanying exhibits unless otherwise indicated. Petitioner owns real property located at 159 Second Avenue, New York, New York, Block 465, Lot 47 (the Building or Property) (NY St Cts Elec Filing [NYSCEF] Doc No. 1, petition ¶ 2). By written contract dated January 14, 2014 (the Contract), petitioner retained respondent to perform maintenance service on an elevator at the Property, including regular and systematic examinations, cleaning, lubrication and, "when conditions warrant," replacement of certain parts of the elevator's hoist motor, generator, controller, brake and governor (NYSCEF Doc No. 5, petition, Ex B at 1-2). The general conditions portion of the Contract provides, in relevant part, that "[t]his contract shall apply only to service, repairs or renewals herein covered which are necessitated by wear and tear in the ordinary and usual operation of equipment" (id. at 6). Pursuant to paragraph 13 in a rider to the Contract, respondent agreed to render bills monthly to petitioner, together with "copies of the Coded Work Tickets which log the date, time description of the work and technician doing the work and other records that are also maintained at the Building" (id. at 6).
By letter dated June 30, 2021, Beach Lane Management, Inc. (Beach Lane), petitioner's registered managing agent for the Property, terminated the Contract, effective at the close of business on July 31, 2021 (NYSCEF Doc No. 3, Mitchell Rothken aff, ¶ 4; NYSCEF Doc No. 6, petition, Ex C). Beach Lane also sent respondent a "Cease and Desist Notice" dated July 9, 2021 (NYSCEF Doc No. 7, petition, Ex D) (emphasis and block capitalization removed).
On December 8, 2021, respondent filed a notice of mechanic's lien for $17,812 against the Property (NYSCEF Doc No. 1, ¶ 3; NYSCEF Doc No. 4, petition, Ex A).
Petitioner commenced this proceeding to vacate and discharge the mechanic's lien on the grounds that (1) the maintenance work respondent engaged in is not a lienable improvement under Lien Law § 2 and 2) the notice of lien fails to comport with Lien Law § 9. Despite having been served with the petition (NYSCEF Doc Nos. 10 and 11), respondent has not answered.
Discussion
Lien Law § 3 provides, in part, that:
"A contractor, subcontractor, laborer, materialman, landscape gardener, nurseryman or person or corporation selling fruit or ornamental trees, roses, shrubbery, vines and small fruits, who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, or of his agent, contractor or subcontractor, and any trust fund to which benefits and wage supplements are due or payable for the benefit of such laborers, shall have a lien for the principal and interest, of the value, or the agreed price, of such labor, including benefits and wage supplements due or payable for the benefit of any laborer, or materials upon the real property improved or to be improved and upon such improvement, from the time of filing a notice of such lien as prescribed in this chapter."
An "improvement" for purposes of the Lien Law means, in pertinent part, "the demolition, erection, alteration or repair of any structure upon, connected with, or beneath the surface of, any real property and any work done upon such property or materials furnished for its permanent improvement" (Lien Law § 2 [4]). Because the definition contemplates permanency, temporary structures, such as a scaffold or sidewalk shed, are not improvements under the Lien Law (Matter of W 54-7 LLC v Intersystem S&S Corp., - A.D.3d -, 2022 NY Slip Op 06189, *1 [1st Dept 2022]). In addition, critical to the inquiry is whether the material or service is a "necessary part of work done upon such property for its permanent improvement" (Goldberger-Raabin, Inc. v 74 Second Ave. Corp., 252 NY 336, 341 [1929]; 270 Greenwich St. Assoc. LLC v Patrol & Guard Enterprises, Inc., 2010 NY Slip Op 31667[U], *5 [Sup Ct, NY County 2010] [provision of security guard at a property did not permanently improve the property]). "[M]aterials or services that do not directly pertain to 'the actual work of construction' and that 'have neither physical contact nor immediate connection with the structure at any time[, but] are used only to facilitate and make possible the operation of tools, machinery, or men, which in their turn act upon the structure' are not lienable" (270 Greenwich St. Assoc. LLC v Patrol & Guard Enterprises, Inc., 2010 NY Slip Op 31667[U], *5 [Sup Ct, NY County 2010], quoting Shultz v Quereau Co., 210 NY 257, 261 [1914]). Thus, the installation of modular workstations does not qualify as an improvement (Negvesky v United Interior Resources, Inc., 32 A.D.3d 530, 531 [2d Dept 2006]). Likewise, "ordinary yard work" (Weisman v Maksymowicz, 109 A.D.3d 768, 768 [1st Dept 2013]), a contractor's acceptance and disposal of construction debris for a fee (Matter of Claudio Perfetto, Inc. v Waste Mgt. of N.Y., 274 A.D.2d 389, 390 [2d Dept 2000]) or "recurrent services required for general upkeep rather than lasting improvement" are not improvements (Matter of Magowan, 203 N.Y.S.2d 35, 38 [Sup Ct, Suffolk County 1960]).
"A property owner may obtain summary discharge of a lien when 'it appears from the face of the notice of lien; that the lien is invalid because 'the labor or materials furnished' are not lienable or where the notice of lien does not include the information required by Lien Law § 9 or has not been properly filed (Lien Law § 19 [6])" (Rivera v Department of Hous. Preserv. & Dev. of the City of N.Y., 29 N.Y.3d 45, 51 [2017]). Here, petitioner has established that the nature of the work performed by respondent is not lienable as it involves general upkeep and maintenance as opposed to a permanent improvement of real property. On the notice of lien, respondent alleges that it "Supplied and Installed Elevator Materials, Etc." (NYSCEF Doc No. 4 at 2). Not only is the description of such services vague but, as explained above, the Contract contemplated the performance of regular and systematic service of maintenance of an elevator at the Property and to replace certain parts based on ordinary wear and tear. Furthermore, an excerpt from a July 2, 2021 statement shows that respondent described its work at the Building on March 12, 2021 as "Repair/Proposal Invoice" and its work on July 1, 2021 as "Maintenance" (NYSCEF Doc No. 8, petition, Ex E). Consequently, respondent's work at the Property falls outside the ambit of the Lien Law.
In view of the foregoing, the court need not address the other arguments advanced on the petition.
Accordingly, it is
ORDERED that the petition and application brought by petitioner Sasha Realty LLC (motion sequence no. 001) are granted; and it is further
ADJUDGED that the notice of mechanic's lien filed and docketed by respondent Eltech Industries, Inc. on or about December 8, 2021 in the amount of $17,812.82 against the property known as 159 Second Avenue, New York, New York, Block 465, Lot 47, shall be vacated, discharged and canceled; and it is further
ADJUDGED and that Clerk of Court is hereby directed to immediately vacate, discharge, and cancel the aforesaid lien from the record and enter a statement upon the mechanic's lien docket and all other indices and records maintained by the County Clerk, opposite the endorsement of said Mechanic's Liens, a statement that each lien has been vacated, discharged and canceled by virtue of this Order.