Opinion
521711.
04-07-2016
Edward R. SIM, Doing Business as Pyramid Equipment, et al., Respondents, v. FARLEY EQUIPMENT COMPANY LLC et al., Appellants.
Fischer, Bessette, Muldowney & Hunter, LLP, Malone (John J. Muldowney of counsel), for appellants. Antonucci Law Firm, Watertown (David P. Antonucci of counsel), for respondents.
Fischer, Bessette, Muldowney & Hunter, LLP, Malone (John J. Muldowney of counsel), for appellants.
Antonucci Law Firm, Watertown (David P. Antonucci of counsel), for respondents.
Before: PETERS, P.J., GARRY, ROSE, LYNCH and CLARK, JJ.
Opinion
LYNCH, J. Appeal from an order of the Supreme Court (Main Jr., J.), entered March 26, 2015 in St. Lawrence County, which, among other things, partially denied defendants' motion to dismiss the complaint.
Plaintiffs commenced this action alleging that they entered into oral agreements permitting defendants to use two of their excavators in various construction projects, but that defendants failed to pay for the use of the excavators and also damaged the excavators. They asserted causes of action for prejudgment attachment, Lien Law article 3–A violations, breach of contract and quantum meruit. Defendants made a pre-answer motion to dismiss the complaint for failure to state a cause of action (see CPLR 3211[a][7] ) and also asserted the statute of frauds as an alternative ground to dismiss the breach of contract cause of action (see CPLR 3211[a][5] ). Supreme Court dismissed the cause of action that was labeled as being for prejudgment attachment, but otherwise denied defendants' motion. Defendants appeal.
The filing of an amended complaint while the motion was pending does not, as urged by plaintiffs, render this appeal moot. The amended complaint was served prior to the parties' appearance before Supreme Court to argue the motion. Moreover, the minor additions in the amended complaint did not substantively alter the challenged causes of action (see Marston v. General Elec. Co., 121 A.D.3d 1457, 1457 n. 1, 995 N.Y.S.2d 646 [2014] ; Aetna Life Ins. Co. v. Appalachian Asset Mgt. Corp., 110 A.D.3d 32, 39, 970 N.Y.S.2d 750 [2013] ).
We affirm. “When assessing the adequacy of a complaint in light of a CPLR 3211(a)(7) motion to dismiss, the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide plaintiff[s] ... ‘the benefit of every possible favorable inference’ ” ( AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 5 N.Y.3d 582, 591, 808 N.Y.S.2d 573, 842 N.E.2d 471 [2005], quoting Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ). “ Whether the plaintiff[s] ‘can ultimately establish [their] allegations is not part of the calculus in determining a motion to dismiss' ” (J.P. Morgan Sec. Inc. v. Vigilant Ins. Co., 21 N.Y.3d 324, 334, 970 N.Y.S.2d 733, 992 N.E.2d 1076 [2013], quoting EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 [2005] ). “Courts may consider affidavits submitted in opposition to such a motion to cure any defects in the complaint” (Torok v. Moore's Flatwork & Founds., LLC, 106 A.D.3d 1421, 1421, 966 N.Y.S.2d 572 [2013] ; see Sargiss v. Magarelli, 12 N.Y.3d 527, 531, 881 N.Y.S.2d 651, 909 N.E.2d 573 [2009] ).
With respect to the cause of action under Lien Law article 3–A, such statute applies to improvements to real property and imposes certain obligations on entities or persons deemed trustees under the statute to ensure payment to beneficiaries (see Lien Law §§ 70, 71 ; Mount Vernon City School Dist. v. Nova Cas. Co., 19 N.Y.3d 28, 37, 945 N.Y.S.2d 202, 968 N.E.2d 439 [2012] ; NY Professional Drywall of OC, Inc. v. Rivergate Dev., LLC, 100 A.D.3d 216, 219, 952 N.Y.S.2d 852 [2012] ). The relevant statutory definitions provide, among other things, that a trustee includes a contractor or subcontractor (see Lien Law § 70[2] ), and a beneficiary includes a materialman (see Lien Law § 71[2] ). A materialman is defined as, among other things, one who furnishes “machinery” or “equipment” used by a contractor or subcontractor in a project improving real property (Lien Law § 2[12] ; see Matter of P.J. Carlin Constr. Co. v. A to Z Equip. Corp., 31 A.D.2d 546, 546, 295 N.Y.S.2d 239 [1968] ; 8–92 Warren's Weed, New York Real Property § 92.10[5][h] [2015] ). In their pleadings, as well as affidavits submitted in opposition to the motion (including affidavits from former employees of defendants), plaintiffs indicated that the subject excavators were used by defendants to perform work improving real property for public and private entities on numerous construction projects where defendants were contractors or subcontractors. Plaintiffs further asserted that they entered into a series of oral agreements with defendants regarding the use of the excavators during such time period and that they were not paid any rental amounts. These allegations are sufficient to state a cause of action under Lien Law article 3–A. The remaining arguments do not require extended discussion. Although the nature, length and terms of the purported oral agreements between plaintiffs and defendants regarding the excavators are sharply contested, nevertheless, there are ample allegations in the pleadings and assertions in plaintiffs' affidavits to avoid CPLR 3211(a)(7) dismissal of the causes of action for breach of contract and quantum meruit (see Hyman v. Burgess, 125 A.D.3d 1213, 1214–1215, 4 N.Y.S.3d 645 [2015] ; Schultz Constr. v. Franbilt, Inc., 285 A.D.2d 936, 937–938, 728 N.Y.S.2d 828 [2001] ). Nor was the statute of frauds defense under General Obligations Law § 5–701(a) (1) absolutely established since there are allegations indicating not simply a single agreement spanning more than a year, but, instead, a series of agreements. In such regard, defendants failed to show that the oral agreements alleged by plaintiffs, “by their terms, ‘have absolutely no possibility in fact and law of full performance within one year’ ” (Cron v. Hargro Fabrics, 91 N.Y.2d 362, 366, 670 N.Y.S.2d 973, 694 N.E.2d 56 [1998], quoting D & N Boening v. Kirsch Beverages, 63 N.Y.2d 449, 454, 483 N.Y.S.2d 164, 472 N.E.2d 992 [1984] ; see Gizara v. New York Times Co., 80 A.D.3d 1026, 1028, 915 N.Y.S.2d 379 [2011] ). Finally, contrary to the contention of defendant BS Industrial Contractors, Inc., there are sufficient allegations of its involvement in the purported agreements to avoid dismissal as to it at this procedural point in the litigation (see e.g. CR Best Rd., LLC v. Camps Mogen Avraham, Heller, Sternberg, Inc., 103 A.D.3d 1075, 1076, 960 N.Y.S.2d 545 [2013] [on an appeal from a CPLR 3211 motion, “a minimal showing of potential merit will avoid dismissal”] ).
Defendants' argument regarding the statute of limitations applicable to the Lien Law was raised for the first time in their reply brief and, as such, is not properly before us (see Matter of Claydon, 103 A.D.3d 1051, 1054, 962 N.Y.S.2d 352 [2013] ).
ORDERED that the order is affirmed, with costs.
PETERS, P.J., GARRY, ROSE and CLARK, JJ., concur.