Opinion
2012-12-6
Samuel CREECH, Respondent, v. Loreto RUFA et al., Defendants, and Shawn Hamlin, Doing Business as Hamlin Design Group, et al., Appellants.
McNamee, Lochner, Titus & Williams, P.C., Albany (Kevin Laurilliard of counsel), for appellants. James F. Keefe, Cairo, for respondent.
McNamee, Lochner, Titus & Williams, P.C., Albany (Kevin Laurilliard of counsel), for appellants. James F. Keefe, Cairo, for respondent.
Before: MERCURE, J.P., LAHTINEN, KAVANAGH, McCARTHY and GARRY, JJ.
GARRY, J.
Appeals (1) from an order of the Supreme Court (McDonough, J.), entered October 5, 2011 in Greene County, which, among other things, granted plaintiff's cross motion for summary judgment vacating the mechanic's liens filed by defendants Shawn Hamlin and Buckman & Whitbeck, P.C., and (2) from an order of said court, entered March 14, 2012 in Greene County, which denied a motion by said defendants to renew and reargue.
Plaintiff entered into a contract to sell his real property in the Town of Windham, Greene County to defendants Loreto Rufa and Larry Clohessy (hereinafter collectively referred to as the buyers). The contract provided that the buyers would obtain the approval of certain government agencies for a 19–lot subdivision on the property and that the contract was contingent upon these approvals. The buyers contracted for this purpose with defendants Shawn Hamlin, doing business as Hamlin Design Group, and Buckman & Whitbeck, P.C. (hereinafter collectively referred to as defendants) to perform certain architectural and engineering services. The buyers ultimately failed to obtain the requisite approvals, and failed to pay defendants in full for their services. Defendants filed mechanic's liens against plaintiff's property for the amounts they claimed to be owed. Plaintiff then commenced this breach of contract action against the buyers and against defendants, seeking to have the mechanic's liens declared invalid and discharged, among other things. Following discovery, defendants sought summary judgment declaring as a matter of law that plaintiff had consented to their work, and other relief. Plaintiff opposed the motion and cross-moved for summary judgment vacating the mechanic's liens. Supreme Court denied defendants' motion and granted plaintiff's cross motion. Defendants appeal from that order, and from a subsequent order denying their motion for reargument and/or renewal.
A mechanic's lien on real property is not valid unless the property owner or the owner's agent requested or consented to the lienor's services, and such consent must be shown by some affirmative act, and not merely by the owner's acquiescence or awareness ( seeLien Law § 3; Saratoga Assoc. Landscape Architects, Architects, Engrs. & Planners, P.C. v. Lauter Dev. Group, 77 A.D.3d 1219, 1220–1221, 910 N.Y.S.2d 571 [2010];Tri–North Bldrs. v. Di Donna, 217 A.D.2d 886, 887, 629 N.Y.S.2d 850 [1995];Care Sys. v. Laramee, 155 A.D.2d 770, 771, 547 N.Y.S.2d 471 [1989] ). Plaintiff supported his claim that he did not consent to defendants' work with his affidavit and deposition testimony asserting that he had no prior knowledge of the nature of their obligations to the buyers or the services they performed, that he did not hire them or agree to their work and that, although he attended some meetings of the Town Planning Board at Rufa's request, he was not asked to review, comment on or inspect defendants' work at these meetings or otherwise, never saw plans for the buyers' proposed development, and never spoke with the buyers about their plans for obtaining the required approvals. Plaintiff further submitted the deposition testimony of defendants, who stated that they never spoke with plaintiff about their work, requested his input or approval, showed him plans, informed him of the work's progress or sought payment from him. We agree with Supreme Court that these submissions met plaintiff's burden to establish on a prima facie basis that he was entitled to judgment, shifting the burden to defendants to establish the existence of triable issues of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986];Saratoga Assoc. Landscape Architects, Architects, Engrs. & Planners, P.C. v. Lauter Dev. Group, 77 A.D.3d at 1221, 910 N.Y.S.2d 571;Tri–North Bldrs. v. Di Donna, 217 A.D.2d at 887, 629 N.Y.S.2d 850).
Defendants did not meet that burden. Contrary to their claims, nothing more than plaintiff's awareness and acquiescence was established by his signature on the purchase contract, his deposition testimony that he knew that the contract was contingent on the government approvals, and his attendance at meetings of the Planning Board where the subdivision project was discussed. Defendants' claims to the effect that plaintiff knew of and consented to their professional services were wholly conclusory and unsupported by any documents or other evidence ( see New York State Higher Educ. Servs. Corp. v. Feher, 291 A.D.2d 736, 737–738, 738 N.Y.S.2d 456 [2002],lv. dismissed and denied98 N.Y.2d 718, 748 N.Y.S.2d 898, 778 N.E.2d 548 [2002];Huff v. C.K. Sanitary Sys., 260 A.D.2d 892, 896, 688 N.Y.S.2d 801 [1999] ). Accordingly, defendants failed to establish the existence of issues of fact as to whether plaintiff took any affirmative act indicating his consent to defendants' work, and Supreme Court properly granted plaintiff's cross motion for summary judgment vacating the liens ( see Saratoga Assoc. Landscape Architects, Architects, Engrs. & Planners, P.C. v. Lauter Dev. Group, 77 A.D.3d at 1221–1222, 910 N.Y.S.2d 571;Tri–North Bldrs. v. Di Donna, 217 A.D.2d at 887, 629 N.Y.S.2d 850).
Finally, Supreme Court properly denied defendants' motion for renewal.
Upon this motion, defendants submitted a certified copy of an application for review of a major subdivision that had been presented to the Planning Board in July 2006. This document did not constitute newly discovered evidence—defendants had produced it during plaintiff's March 2011 deposition and questioned him about it extensively. Nor was any justifiable excuse revealed for the failure to obtain a certified copy of this document until after the summary judgment order was rendered ( seeCPLR 2221[e]; 2 N. St. Corp. v. Getty Saugerties Corp., 68 A.D.3d 1392, 1396, 892 N.Y.S.2d 217 [2009],lv. denied14 N.Y.3d 706, 2010 WL 1235671 [2010];Johnson v. Title N., Inc., 31 A.D.3d 1071, 1072, 820 N.Y.S.2d 345 [2006];Greater Amsterdam School Dist. v. International Fid. Ins. Co., 285 A.D.2d 944, 945, 727 N.Y.S.2d 831 [2001] ).
No appeal lies from the denial of a motion for reargument ( see Hoover v. State of New York, 80 A.D.3d 1020, 1020, 914 N.Y.S.2d 691 [2011] ).
ORDERED that the orders are affirmed, with costs.
MERCURE, J.P., LAHTINEN, KAVANAGH and McCARTHY, JJ., concur.