Opinion
2012-09-25
KAMCO SUPPLY CORP., Plaintiff–Appellant, v. JMT BROTHERS REALTY, LLC, Defendant–Respondent, “John Doe One,” et al., Defendants.
Eric Schneider, Kingston, for appellant. Welby, Brady & Greenblatt, LLP, White Plains (Gregory J. Spaun of counsel), for respondent.
Eric Schneider, Kingston, for appellant. Welby, Brady & Greenblatt, LLP, White Plains (Gregory J. Spaun of counsel), for respondent.
Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered June 22, 2009, which, to the extent appealed from, granted defendant owner's motion for summary judgment dismissing plaintiff *702subcontractor's claim seeking foreclosure on its mechanic's lien for materials furnished for a home improvement project, unanimously affirmed, without costs.
Defendant owner had the initial burden on summary judgment of establishing prima facie that at the time the lien was filed, it owed no payment to the general contractor ( Penava Mech. Corp. v. Afgo Mech. Servs., Inc., 71 A.D.3d 493, 495, 896 N.Y.S.2d 349 [1st Dept. 2010] ). It satisfied its burden by showing that by virtue of the general contractor's unlicensed status, the home improvement contract entered between the two was rendered unenforceable pursuant to Administrative Code of City of N.Y. §§ 20–386, 20–387 ( see B & F Bldg. Corp. v. Liebig, 76 N.Y.2d 689, 692, 563 N.Y.S.2d 40, 564 N.E.2d 650 [1990], citing Mortise v. 55 Liberty Owners Corp., 102 A.D.2d 719, 477 N.Y.S.2d 2 [1st Dept. 1984],affd.63 N.Y.2d 743, 480 N.Y.S.2d 208, 469 N.E.2d 529 [1984] ). Where a home improvement contract has been rendered unenforceable, there can be no funds due and owing from the owner to the unlicensed general contractor to support a subcontractor's mechanic's lien claim ( see e.g. Administrative Code § 20–387[a]; Matros Automated Elec. Constr. Corp. v. Libman, 37 A.D.3d 313, 37 A.D.3d 313, 830 N.Y.S.2d 127 [1st Dept. 2007];see also Blake Elec. Contr. Co. v. Paschall, 222 A.D.2d 264, 267, 635 N.Y.S.2d 205 [1st Dept. 1995] ). Defendant owner further showed that it had no direct contractual relationship with plaintiff subcontractor; absent such relationship, “the rights of a subcontractor [must be] derivative of the rights of the general contractor and a subcontractor's lien must be satisfied out of funds due and owing from the owner to the general contractor at the time the lien is filed” ( Penava, 71 A.D.3d at 495, 896 N.Y.S.2d 349 [internal quotation marks and citation omitted] ). The burden shifted to plaintiff, which failed to raise any triable issue of fact in opposition to defendant's motion.