Opinion
8000071/2014
03-17-2015
In the Matter of the Application of Elizabeth Basso, Applicant, v. LO Electric/Lloyd Oliver, Lienor. LO Electric and LLOYD OLIVER, Plaintiffs, v. Elizabeth Basso, Defendant. Index No. 2491/2014 Motion Date 1/16/15
Law Offices of P. Anne Lunario Attorney for Applicant 75 South Broadway, 4th floor White Plains, New York 10601 Lansky Law Group Attorney for Lienor 947 South Lake Boulevard, Suite 3A Mahopac, New York 10541
Law Offices of P. Anne Lunario
Attorney for Applicant
75 South Broadway, 4th floor
White Plains, New York 10601
Lansky Law Group
Attorney for Lienor
947 South Lake Boulevard, Suite 3A
Mahopac, New York 10541
Victor G. Grossman, J.
The following documents, numbered 1 to 37, were considered in connection with:
(1) Defendant-Applicant's Order to Show Cause, dated December 9, 2014, seeking an Order, discharging, vacating and nullifying, with prejudice, the $67,884.69 mechanic's lien filed on October 14, 2014, and awarding Defendant-Applicant reasonable attorneys' fees for costs incurred in making the instant application.
(2) Plaintiff-Lienor's Notice of Cross Motion, dated December 18, 2014, seeking an Order, denying Defendant-Applicant's motion to discharge the lien and denying Defendant-Applicant's motion for legal fees; granting Plaintiff-Lienor's application to stay the notice to commence action or show cause; and granting Plaintiff-Lienor's application to amend the Notice of Lien by allowing an additional verification page and amending its date to October 26, 2014.
(3) Defendant-Applicant's Order to Show Cause, dated January 2, 2015, seeking an Order: (1) discharging, vacating and otherwise cancelling the Notice of Pendency filed on December 16, 2014, against the Defendant-Applicant's property in the amount of $67,884.69; (2) barring Plaintiff-Lienor from filing a second Notice of Pendency; (3) requiring Plaintiff-Lienor to post an undertaking in the amount of $120,000.00 to indemnify Defendant-Applicant against damages or lost profit arising from the malicious actions of Plaintiff-Lienor; and (4) ordering Plaintiff-Lienor to pay Defendant-Applicant attorneys' fees and costs in defense of this action.
PAPERSNUMBERED
Order to Show Cause/Affidavit in Suppor
Affirmation in Support/Exhs. A-E1-7
Notice of Cross Motion/Affirmation/Affidavit/Exhs. 1-38-13
Affirmation in Opposition to Cross Motion14
Order to Show Cause/Affirmation in Suppor
Affidavit in Support/Exhs. A-I15-26
Affirmation in Reply/Affidavit in Reply/Exhs. 1-727-35
Reply Affirmation/Exh. A36-37
Before the Court is the residue of the parties' failed relationship in the form of claimed, unkept promises for which recovery, if not retribution, is sought. Relief is sought in the form of a claimed Mechanic's Lien (Index No. 8000071/2014), and a breach of contract action (Index Number 2491/2014) in which a Notice of Pendency is filed. Plaintiff-Lienor filed another Verified Complaint, dated October 2, 2014 (Index No. 2051/2014), alleging replevin, breach of contract, and unjust enrichment. The Court will not be addressing the alleged merits of any of the claims, but rather the procedural issues raised by the pleadings and papers filed. For the reasons set forth herein, the Mechanic's Lien, and the Notice of Pendency are both stricken, cancelled, and discharged, albeit for different reasons. Additional relief is also set forth herein.
Plaintiff-Lienor and Defendant-Applicant cohabitated, sharing an intimate relationship from 2007 to July 2014. During that time, Defendant-Applicant acquired a house in Putnam Valley to which title was taken solely in her name. As part of the purchase, Plaintiff-Lienor provided $35,000 to Defendant-Applicant. In connection with Defendant-Applicant's mortgage, in August 2011, Plaintiff-Lienor and Defendant-Applicant executed a letter, pursuant to a request from Defendant-Applicant's lender, acknowledging that the money was a gift, and further reciting, "This is a bona-fide gift and there is no obligation, expressed or implied either in the form of cash or future services to repay this sum at this time. The funds given to the home buyer were not made available to the donor from any person or entity with an interest in the sale of the property ." Thereafter, Defendant-Applicant acquired title to the premises and moved in with her children and Plaintiff-Lienor.
In July 2014, the relationship came to an end. Although the parties disagree about why the relationship ended, it is undisputed that Plaintiff-Lienor vacated the premises after Defendant-Applicant filed a Petition, alleging a Family Offense which resulted in an Order on consent. Defendant-Applicant listed the house for sale and entered into a Contract of Sale with a prospective purchaser. The closing was scheduled for the end of December 2014. At a conference with the Court on January 16, 2015, Defendant-Applicant's counsel claimed she had received a letter from the buyer's attorney, declaring "time of the essence."
The rights and responsibilities of unmarried people who choose to cohabit is not new to the New York courts. While New York has rejected the concept of "palimony," it has acknowledged that unmarried couples are free to contract with each other, but that such contracts will not be implied simply from the fact of cohabitation. See Morone v. Morone, 50 NY2d 481 (1980). Difficulties of proof necessary to establish financial and property rights between unmarried couples compel the express contract, rather than an implied one, though it need not be in writing. Id. at 487-88. Whether services were rendered with the expectation of compensation, as in many business affairs, or gratuitously, within the context of the parties' personal relationship, is often a matter of proof and is difficult to discern.
In Morone, Judge Meyer observed: The major difficulty with implying a contract from the rendition of services for one another by persons living together is that it is not reasonable to infer an agreement to pay for the services rendered when the relationship of the parties makes it natural that the services were rendered gratuitously (Matter of Adams, supra [1 AD2d] at p. 262; Robinson v. Munn, 238 NY 40, 43). As a matter of human experience personal services will frequently be rendered by two people living together because they value each other's company or because they find it a convenient or rewarding thing to do (see Marvin v. Marvin, 18 Cal.3d, 660, 675-676, n 11, supra). For courts to attempt through hindsight to sort out the intentions of the parties and affix jural significance to conduct carried out within an essentially private and generally noncontractual relationship runs too great a risk of error. Absent an express agreement, there is no frame of reference against which to compare the testimony presented and the character of the evidence that can be presented becomes more evanescent. There is, therefore, substantially greater risk of emotion-laden afterthought, not to mention fraud, in attempting to ascertain by implication what services, if any, were rendered gratuitously and what compensation, if any, the parties intended to be paid. Id. at 488. Such difficulty invites fraud, mischief, and, under the best of circumstances, what the parties intended. Decisions subsequent to Morone highlight this difficulty.
In Trimmer v. Van Bomel, 107 Misc 2d 201 (Sup. Ct. NY Cy., 1980), Justice Greenfield rejected the claims of an implied contract of a companion of a wealthy widow for whom personal, nonsexual services were performed. The lack of any definiteness to their "agreement" left the court unable to conclude the exact meaning of what the parties intended. Justice Greenfield framed the issue in the beginning of his decision with a prescience for actions that followed, including the instant action:
The complex and varied relationships between men and women, when they come to an end, oft leave a bitter residue and a smoldering irritation for which the salve, often the only soothing balm, is cash. It is a poor substitute for love, affection or attention, but for many its satisfactions are longer lasting. Id. at 201.
In a situation more analogous to the facts of this case, a local court rejected the claims of an implied contract and unjust enrichment where the plaintiff sought to recover $2,500.00 of moneys spent while cohabitating with the defendant for almost eighteen months. Soderholm v. Kosty, 177 Misc 2d 403 (Justice Court Chemung Cy., 1998). There, Village Justice Brockway identified the components of a human relationship which arise from something other than a legal relationship:
[W]e know that as a matter of human experience, goods, services and financial advances are frequently rendered between two people not for remuneration but because they value each other's company or because they find it a caring, convenient or rewarding thing to do. The same can be said for most expenses in a "live-in" relationship. Given the usual "give and take" normally associated with cohabitation, and the giving and receiving by both here of love, affection, gifts and the like, it cannot be said that equity and good conscience cry out for fiscal adjustment. Id. at 405-06. These behaviors do not lend themselves to contractual obligations. As Justice Brockway observed:
Basic contract law requires that a contract spell out a meaningful exchange of promises, clear in their intent and manner of execution. It is not for courts to fashion a contract where the parties have neglected to do so themselves. In this case, the plaintiff, years after the events, claims that various other sums are due him arising out of the cohabitation of the parties. However, at the time of the expenditures, it was not at all clear or unequivocal that the parties had a "meeting of the minds" as to restitution. Indeed, plaintiff kept expending monies despite Kosty's obvious lack of ability or intent to make reimbursement. Moreover, Kosty monetarily contributed to the relationship in other ways (see supra, at 405) which may have served to offset Soderholm's financial advances. To attempt to put judicial sanction on such vague arrangements and financial exchanges is not conceptually valid and cannot expect judicial enforcement. In short, "no specific dollar amounts were ever specified, no time for performance was ever set and no conditions as to the manner of payment were given, nor was anything ever said about what would happen if the relationship between the parties terminated" (Trimmer v. Van Bomel, supra, at 207). Without more, these other expenditures, surrounded not by clear or third-party "IOU's", but by cohabitation, love, bliss, "somedays" and borrowed cars, do not a contractual debt make. Id. at 406-07.
Notably, Kosty was a co-lessee with Soderholm, and, on the basis of the lease obligation, he was able to recover a portion of the rent payments. But here, this Court is being asked to allow Plaintiff-Lienor to proceed on a theory of implied contract contrary to Morone. No writings evidencing any obligation have been produced at this juncture, other than an invoice prepared after the relationship ended, claiming several years of work, labor and services.
On or about September 1, 2014, Plaintiff-Lienor sent Defendant-Applicant an "Invoice" for work performed at Defendant-Applicant's residence. The Invoice lists 33 separate entries at various rates and totals $67,884.69. Although the Invoice does not identify the dates of work performed or the furnishing of materials, a subsequently filed unsigned and unverified Notice of Mechanic's Lien alleges the time period to be from November 2011 to June 27, 2014. One month later, in October 2014, under Index Number 2051/2014, Plaintiff filed a Summons and Verified Complaint, alleging three causes of action including replevin, breach of contract, and unjust enrichment. Specifically, the October 2014 Complaint alleged that Defendant-Applicant borrowed $55,000 — not $35,000 as reflected in the gift letter — but it is devoid of documentary support. Plaintiff-Lienor's Prayer for Relief sought, inter alia, a direction that Defendant-Applicant execute a Promissory Note to evidence a $55,000 debt, and a remedy for conversion which has not been alleged. The October 2014 Complaint also refers to seven exhibits, which are not attached and, thus, cannot be given any weight. Two weeks later, on October 14, 2014, a Notice of Mechanics Lien was filed under Docket No. 80000071/2014. Significantly, and fatally, the Notice of Mechanic's Lien was not verified. On November 7, 2014, in response to the Notice of Mechanic's Lien, Defendant-Applicant served upon Plaintiff-Applicant's counsel, a Notice to Commence Action under §59 of the Lien Law.
On December 16, 2014, Plaintiff-Lienor filed a Notice of Pendency, and a Summons With Notice under Index Number 2491/2014. The Summons alleged an "action to recover a money judgment related to non-payment on a contract for home improvement," but made no reference to the foreclosure of a Mechanic's Lien.
By Order to Show Cause dated December 9, 2014, Defendant-Applicant moved to discharge, vacate and nullify the Notice of Mechanic's Lien filed on October 14th, pursuant to Lien Law §59, based on Plaintiff-Lienor's failure to comply with: (1) Lien Law §9(7), for failing to verify the lien; and (2) Lien Law §10, for failing to file proof of service in a timely manner with the County Clerk.
Plaintiff-Lienor cross moved, seeking: (1) a denial of the motion to discharge the lien and attorney's fees; (2) an Order to stay the notice to commence the action; and (3) to amend the lien by adding a verification, and changing the notice date to October 26, 2014. Despite the untimely nature of this cross-motion, the Court, in the exercise of discretion, accepted the cross-motion and provided Defendant-Applicant an opportunity to respond.
Finally, Defendant-Applicant moved under Index Number 2491/2014, for an Order: (1) discharging the Notice of Pendency; (2) prohibiting the filing of a second Notice of Pendency; (3) requiring the posting of a bond in the amount of $120,000; and (4) awarding attorney's fees.
The Mechanic's Lien
The motion to dismiss the Mechanic's Lien is granted. The document itself is a nullity, without force and effect, due to the absence of a signed verification. The Lien Law requires a statement in the form of a verification, attesting that the matters asserted in the Lien are true, or, if stated on information and belief, they are believed to be true. It is the equivalent of an oath, and it may not be omitted. See Empire Pile Driving Corp. v. Hylan Sanitary Service, Inc., 32 AD2d 563 (2d Dept. 1969); Fries v. Bray, 279 A.D. 8, 9-11 (4th Dept. 1951); see also Mozarsky v. Whinston Bros., Inc. 228 A.D. 642 (2d Dept. 1929), aff'd 254 NY 552 (1930). The statutory command that the "notice must be verified" (see Lien Law §9[7] [emphasis added]), is wholly inconsistent with the notion that an unverified notice of lien can give rise to an enforceable lien. There is a difference between technical or ministerial defects in the body of the notice, which can be corrected, and the elimination of a specific oath requirement. Indeed, even the lienor's signature in the wrong place can be corrected so long as the signature is construed as a verification. See James v. Zizzi Contracting Corp. v. 115 Flying Point. LLC., 38 AD3d 844 (2d Dept. 2007); Teitler v. McDermott and McDonald, 282 A.D. 953 (2d Dept. 1953), aff'd 306 NY 953 (1954). And, the 1966 amendments to the Lien Law did not eliminate the verification requirement.
Additionally, as an additional basis for granting the motion, Plaintiff-Lienor failed to file the Affidavit of Service of the Lien in a timely manner as required by Section 11 of the Lien Law. The Notice of Mechanic's Lien was filed on October 14, 2014. Service is required either five days before the filing or within thirty (30) days after the filing. See Lien Law §11. "Failure to file proof of such a service with the county clerk within thirty-five days after the notice of lien is filed shall terminate the notice as a lien." Id. The filing requirement is intended to confirm to the creditors, purchasers and the public that the owner has been served, and accordingly, they are placed on notice of the lienor's claim. See Lien Law §11; County Law §525. There is no statutory authorization to relax this requirement.
The County Clerk's file, based on a review by Defendant-Applicant's counsel, was devoid of any filing of proof of service prior to December 1, 2014. The "Affidavit" of Plaintiff-Lienor's counsel's paralegal acknowledges that the County Clerk "had no record of the filing" of the Affidavit of Service. The term "Affidavit" is placed in quotes to identify the source of the statement, and it is unsworn, despite the experience of the paralegal and the supervision of Plaintiff-Lienor's counsel. The County Clerk has a statutorily imposed obligation to accept and acknowledge all filings it receives. Although Lienor claims such filing occurred, no proof is submitted except for the December 1, 2014 Affidavit of Plaintif-Lienor's counsel's paralegal, alleging she filed proof of service on October 14, 2014. Notably, such a statement was not included in her October 14, 2014 Affidavit of Service. While an Affidavit of Service creates a rebuttable presumption, Plaintiff-Lienor has not offered anything to establish a timely filing, other than his mere assertion of his employee's actions; in short, he has not rebutted his employee's actions. A receipt for filing, if it existed prior to December 1, 2014, would rebut such presumption, but none is offered, and, an unsworn "Affidavit" by a person with alleged knowledge of the facts is worthless.
Defendant-Applicant also seeks to discharge the lien pursuant to Lien Law §19(3). arising from the failure by Plaintiff-Lienor to comply with Lien Law §59. Plaintiff-Lienor has cross-moved either to "stay the notice to commence action or show cause" or "to amend the Notice of Lien by amending the notice of lien date to October 26, 2014." On November 7, 2014, Defendant-Applicant filed a Notice to Commence Action pursuant to Lien Law §59. Plaintiff-Lienor filed a cross-motion seeking the above relief. Plaintiff-Lienor unilaterally extended the return date to January 2, 2015 (from December 19, 2014), but he never commenced the action to foreclose the lien, or seek a stay of the December 19th deadline. Although the Court is unconvinced such relief can be granted, the failure to request it, by Order to Show Cause with a request for a stay prior to the December 19, 2014 deadline, precludes consideration of the request after that date. Notably, Plaintiff-Lienor offers no authority, either in the form of statutory authority or case law, to support his position. Instead, he seeks to circumvent the statutory obligation. The statutory time limit is not a matter of convenience, but rather, it is an obligation placed on lienors to be prepared to move forward with their claim while that claim is affecting a property owner, creditors, and prospective purchasers. It is unknown why Plaintiff-Lienor did not respond to the Notice by the proper commencement of the action, such as the filing of a Summons in an action to foreclose the lien, but the Court cannot dwell on the issue. The failure to do so requires dismissal. See Matter of Marple v. Sorg, 230 AD2d 858 (2d Dept. 1996).
The Court is also asked to effectively post-date the Notice of Lien such that an eventual action to foreclose the lien withstands the application pursuant to Lien Law §59. Plaintiff-Lienor has not offered any statutory authority for this proposition, and the Court, having determined that the unverified Notice of Lien is a nullity, is not inclined to forgive or ignore the litany of errors, defects, irregularities and absence of authority in the papers before it to resurrect a defective lien.Finally, the issue of costs and sanctions, if any, pursuant to 22 N.Y.C.R.R.§130-1.1, will be addressed in the future.
The Notice of Pendency
By Order to Show Cause, Defendant-Applicant seeks an Order: (1) discharging, vacating and otherwise cancelling the Notice of Pendency filed on December 16, 2014, against Defendant-Applicant's property in the amount of $67,884.69; (2) barring Plaintiff-Lienor from filing a second Notice of Pendency; (3) requiring Plaintiff-Lienor to post an undertaking in the amount of $120,000.00 indemnifying Defendant-Applicant against damages or lost profit arising from the malicious actions of Plaintiff-Lienor; and (4) ordering Plaintiff-Lienor to pay Defendant-Applicant's attorneys' fees and costs in defense of this action.
The Notice of Pendency is governed by Article 65 of the CPLR. The ease with which it is obtained makes it more powerful than other more common provisional remedies. The act of filing a Notice of Pendency affects the ability to transfer real property without judicial review. For that reason its application is limited to lawsuits affecting title to, or the possession, use or enjoyment of, real property, by providing a notice function. See CPLR §6501. Although not intended to serve as an attachment, it has a remarkably similar effect. Under certain circumstances an improperly filed Notice of Pendency can result in damages, and/or sanctions. See CPLR §6514. The filing of the Notice of Pendency must be accompanied by a copy of the complaint, which presumably will allege how the suit affects title to, or the possession, use or enjoyment of, real property. See CPLR §6511(a). Upon reviewing a motion to cancel the Notice of Pendency pursuant to CPLR §6514, the court will confine itself to the face of the complaint to determine whether the action falls within the scope of CPLR §6501. See 5303 Realty Corp. v. O & Y Equity Corp. et. al, 64 NY2d 313 (1984). A subsequent amended complaint cannot be used to justify an earlier Notice of Pendency. Id. at 320.
The requirements of Article 65 are to be strictly construed. "To counterbalance the ease with which a party may hinder another's right to transfer property, this court has required strict compliance with the statutory procedural requirements (see Israelson v Bradley, 308 NY 511, supra). This is an extraordinary privilege * * * If the terms imposed are not met, the privilege is at an end. Such has been the law of our State, as declared in cases over the years, which did not, however, reach this court.' (Id., at p 516 [citations omitted].)." Id. at 320.
On December 17, 2014, Plaintiff-Lienor's counsel sent to Defendant-Applicant's counsel, by facsimile, a "Summons with Notice" and a "Notice of Pendency," in the amount of $ 67,884.69, based on a claimed "non-payment on a contract for home improvement" for which "a judgment to recover money damages" was sought. A second copy was served by Priority Mail on December 18, 2014. Defendant-Applicant asserts that she was not properly served with the Summons. She further asserts that the Notice of Pendency is not applicable to a claim for money damages. Plaintiff-Lienor's counsel admits that he served these items by mail on Defendant-Applicant's counsel. He claims that on December 15, 2014, he asked Defendant-Applicant's counsel "whether he should have it served on Defendant directly or whether Attorney Lunario would accept service," and he refers to an attached exhibit. The statement by Plaintiff-Lienor's counsel is misleading and contradicts the attached exhibits. In the exhibits, in an exchange of e-mails, Plaintiff-Lienor's counsel makes reference to the filing of a Notice of Pendency, asking, "Will you accept service of same or shall I serve it on Elizabeth Basso?" In reply, Defendant-Applicant's counsel states, in relevant part, "I will accept service of the NOP [Notice of Pendency] by facsimile". No reference is made by either party to service of the Summons with Notice. There is neither a request by Plaintiff-Lienor's counsel to have Defendant-Applicant's counsel accept service, nor is there a consent, or even an assertion of authority, to accept service by Defendant-Applicant's counsel. Under these circumstances the mailing of the Summons to Defendant-Applicant's counsel did not constitute valid service, and the action must be dismissed due to the lack of personal jurisdiction. See Broman v. Stern, 172 AD2d 475 (2d Dept. 1991); see also Khanal v. Sheldon, 55 AD3d 684, 686 (2d Dept. 2008); 6 Davis Associates v. Rye Castle Apartment Owners, Inc., 242 AD2d 528 (2d Dept. 1997).
Moreover, the failure by Plaintiff-Lienor's counsel to file a complaint with the Notice of Pendency further mandates dismissal as he did not comply with the plain language of CPLR §6511(a)(" Unless it has already been filed in that county, the complaint shall be filed with the notice of pendency"). Chateau Rive Corp. v. Riverview Partners, LP, 18 AD3d 492 (2d Dept. 2005). The holding in Chateau Rive compels the determination here that the Notice of Pendency is defective and void. Accordingly, dismissal is granted pursuant to CPLR §6514(a).Further, and notwithstanding this determination, the Court has reviewed the filings, including the Mechanic's Lien and Complaint verified on October 2, 2014. On the basis of the Summons with Notice alleging "non-payment on a contract for home improvement" for which "a judgment to recover money damages" was sought, and filed with the Notice of Pendency, together with the prior complaint alleging replevin, unjust enrichment, breach of contract, seeking money damages and an order compelling Defendant-Applicant to execute a promissory note, it is all too evident that Plaintiff-Lienor's claims are for money damages and are not properly secured by a Notice of Pendency. Khanal v. Sheldon, supra at 686; Shkolnik v. Krutoy, 32 AD3d 536 (2nd Dept. 2006); Alternate Energy Management Corp. v. Fontana, 141 AD2d 482 (2nd Dept. 1988). The Court will not allow Plaintiff-Lienor to interfere with pending sale through the device of a Notice of Pendency. See 5303 Realty Corp., supra at 322-24. Insofar as there is only a claim for money damages before the court, there is no basis for the filing of a second Notice of Pendency.
A Verified Complaint, filed on January 13, 2015, alleges two causes of action. One for breach of contract, and the other unjust enrichment. Both seek money damages; neither affects title to, or the possession, use or enjoyment of real property. In addition, the defective service of the Summons with Notice renders the subsequently filed Complaint, a nullity. Accordingly, dismissal is also granted pursuant to CPLR §6514(b).
Defendant-Applicant has requested additional proactive relief in the form of an Order: (1) barring Plaintiff-Lienor from filing a second Notice of Pendency; (2) requiring Plaintiff-Lienor to post an undertaking in the amount of $120,000.00 indemnifying Defendant-Applicant against damages or lost profits arising from the malicious actions of Plaintiff-Lienor; and (3) ordering Plaintiff-Lienor to pay Defendant-Applicant's attorneys' fees and costs in defense of this action. In light of the determinations made herein, pursuant to CPLR §6516 (c), Plaintiff-Lienor may not file a second Notice of Pendency, and consequently, no undertaking is required. However, Defendant-Applicant is entitled to costs and expenses under CPLR §6514 (c). These costs and expenses include reasonable attorney's fees. See No.1 Funding Center, Inc. v. H & G Operating Corp, 48 AD3d 908 (3d Dept. 2008); Josefsson v. Keller, 141 AD2d 700 (2d Dept. 1988). The bad faith is evident not only in the lack of merit to Plaintiff-Lienor's Notice of Pendency, but also in the pervasive plethora of defective filings or failure to file, improper service or no service of process, misleading submissions and other actions. "The facts clearly support the inference that plaintiff's prosecution of this action and its filing of the lis pendens, * * * was merely for the improper purpose of holding defendant's property hostage to negotiation of a settlement * * *. CPLR §6514 was clearly intended to prevent such purpose by imposing the costs of litigation on the plaintiff." Chestnut Coney, LLC v. SBK Enterprises, 2013 WL 4873074 (Sup. Ct., Kings Cy., Sept. 12, 2013).
Accordingly, it is hereby
ORDERED that Defendant-Applicant is directed to submit an application setting forth its costs and expenses, including attorney's fees, complete with supporting time records, disbursements, and such other information necessary to evaluate her request on or before February 17, 2015; Plaintiff-Lienor may submit a response on or before March 3, 2015; a hearing on the issue, if necessary will be held on March 16, 2015 at 2:00 p.m.; each party shall also address the issue of whether costs and sanctions should be awarded pursuant to 22 N.Y.C.R.R. §130-1-1; and it is further
ORDERED that upon service of this Order with notice of entry, the Clerk of the County of Putnam is directed to vacate and cancel the Notice of Mechanic's Lien affecting property known as 15 Oscawana Heights Road, in the Town of Putnam Valley, and enter upon the lien docket, or other record of liens, opposite the endorsement of said lien, a statement that it has been vacated and cancelled of record; and it is further
ORDERED that upon service of this Order with notice of entry, the Clerk of the County of Putnam is directed to vacate and cancel the Notice of Pendency, filed on December 16, 2014, affecting property known as 15 Oscawana Heights Road, in the Town of Putnam Valley, Section 51 Block 1 Lot 49 and enter upon the Notice of Pendency Docket, Index, or other record of, opposite the endorsement of said Notice of Pendency, a statement that it has been vacated and cancelled of record .
The foregoing constitutes the Decision and Order of the Court.
Dated:Carmel, New York
__________________________________
HON. VICTOR G. GROSSMAN, J.S.C.