Opinion
Index 508502/20
01-28-2022
O.R.B. Star Construction, Inc., Plaintiff, v. Paul Lindahl, Jamie Lindahl, and Muru Contractors, Inc., f/k/a G.C.N.Y., Builders, Inc., Defendants.
Unpublished Opinion
DECISION, ORDER, AND JUDGMENT
MARK I. PARTNOW, JUSTICE
The following e-filed papers read herein: ........................................................................................NYSCEF Doc No.
Notice of Motion, Affirmation, Affidavit, Memorandum of Law, and Exhibits Annexed....................37-50.
Opposing Affirmation and Exhibit Annexed.....................................................................................51-52
Affirmation in Reply........................................................................................................................53
Upon foregoing papers in this action to foreclose a mechanic's lien, defendants Paul Lindahl and Jamie Lindahl (collectively, the "defendants") move, pre-answer, for an order: (1) pursuant to CPLR 3211 (a) (1), (5), and (7), dismissing, as against them, the amended complaint, as verified on January 15, 2021 (the "amended complaint" or "AC"); (2) directing the Kings County Clerk's Office to discharge the mechanic'~ lien which plaintiff O.R.B. Star Construction, Inc. (the "plaintiff') filed therein on May 25, 2018 (the "mechanic's lien") against the defendants' real property located at 42 Sharon Street, Brooklyn, New York 11211 (Block 2913, Lot 16) (the "property"), and vacating the notice of pendency filed in this action against the property on September 23, 2020 (NYSCEF Doc No. 4); and (3) awarding monetary damages in an amount of at least $52,960.
By short-form order, dated April 14, 2021 (the "prior order"), the Court, on the defendants' prior motion, dismissed the original complaint, dated January 5, 2020 (the "original complaint"), as against them. After the defendants' prior motion was fully briefed but before the Court issued the prior order, the plaintiff filed and served the instant amended complaint. The amended complaint, like its predecessor, seeks foreclosure of the plaintiffs mechanic's lien in the second cause of action (the "lien-foreclosure claim"). In addition, the amended complaint advances, as against the defendants, two quasi-contract claims: one, for breach of a fiduciary duty, and the other, for negligence, in the third and sixth causes of action, respectively (collectively, the "quasi-contract claims”).
Contrary Contrary to the defendants' contention, the amended complaint fails to plead a breach-of-contract claim as against them (see AC, ¶ 23 ["By failing to pay the $44,250 Unpaid Balance, defendant G.C.N.Y.breached its Agreement (contract) with Plaintiff."] [emphasis added]). Thus, it was unnecessary for the defendants to move for dismissal of the breach-of-contract claim (see Notice of Motion, ¶ [i]).
The branch of the defendants' motion which is to dismiss the lien-foreclosure claim is based on, among other arguments, their contention that they had fully paid codefendant Muru Contractors, Inc., formerly known as G.C.N.Y. Builders, Inc. (the "GC"), for the subcontracted-for work and materials before the plaintiff filed its mechanic's lien against their property. In that regard, the Court notes that, pursuant to Lien Law § 4 (1), a mechanic's lien, as a general matter, is valid to the extent of "the sum earned and unpaid on the contract at the time of filing [of] the notice of lien, and any sum subsequently earned thereon." More specifically, "[i]n the case of a subcontractor, the [mechanic's] lien will only attach to those funds due and owing to the general contractor at the time of its filing, or which may thereafter become due and owing" (Bunce v Fahey, 73 A.D.2d 632, 632 [2d Dept 1979]). The defendants' contention that the lien-foreclosure claim is barred by documentary evidence, is well-taken. The Unconditional Waiver and Release Upon Final Payment, which was executed by the GC (and, significantly, solely by the GC) on July 30, 2018, reflects, without dispute from the plaintiff, that the GC was paid in full through May 1, 2018. Thereafter (i.e., on May 25, 2018), the plaintiff filed its mechanic's lien against the defendants' property. The plaintiff does not allege in its amended complaint that it performed any work (and/or that it supplied any materials) to (or with respect to) the defendants' property at any time after May 1, 2018 (cf Ebert v Van-Mar Developers, Inc., 111 A.D.2d 495, 496 [3d Dept 1985]). In fact, the plaintiff's mechanic's lien is limited, by its own terms, to the period which ended on March 27, 2018 (AC, 112). Accordingly, the dismissal of the lien-foreclosure claim pursuant to CPLR 3211 (a) (1) is appropriate.
To be clear, the prior order dismissing the lien-foreclosure claim (as was pleaded in the original complaint in this action) constituted "law of the case," rather than res judicata (see Golia v Vieira, 162 A.D.3d 865, 869 [2d Dept 2018]; see generally People v Evans, 94 N.Y.2d 499, 502' [2000], rearg denied 96 N.Y.2d 755 [2001]).
Similarly well-taken is the defendants' contention that the quasi-contract claims fail to state a cause of action as against them. Subject to certain exceptions which are not relevant to this case, "a property owner who contracts with a general contractor. . . does not become liable to a subcontractor on a quasi-contract theory" (East Coast Mines & Materials Corp. v Golf Course Props. Co., 228 A.D.2d 545 [2d Dept 1996]). Thus, the dismissal of the quasi-contract claims as against the defendants is also appropriate.
With the dismissal of all of the plaintiffs claims against the defendants, the mechanic's lien and notice of pendency (as well as the related bond which released the mechanic's lien) are subject to cancellation (and discharge, as applicable), as more fully set forth in the decretal paragraphs below.
Contrary to the defendants' position, they are not entitled to an award of any monetary damages. The record reflects that the plaintiffs counsel - a solo practitioner who was pitted against a large firm such as defense counsel here - did not operate outside the bounds of zealous representation of his client by filing the amended complaint which (as personally verified by his client) was not so beyond the pale as to be deemed to have been filed in bad faith for an unreasonable and/or vexatious purpose. The defendants' surety fees for the bond which released the mechanic's lien are an incident to litigation, as are their counsel's fees and expenses.
Accordingly, it is
ORDERED that the defendants' motion in Seq. No. 2 is granted to the extent that the amended complaint is dismissed in its entirety as against them without costs or disbursements, and the plaintiffs notice of pendency and mechanic's lien (as well as the surety bond) are canceled (and discharged, as applicable) as more fully set forth below; and the remainder of their motion is denied; and it is further
ORDERED that the Notice of Pendency filed in this action against the defendants' real property located at 42 Sharon Street, Brooklyn, New York 11211 (Block 2913, Lot 16), on September 23, 2020 (NYSCEF Doc No. 4), is canceled pursuant to CPLR 6514 (a) without any costs and expenses pursuant to CPLR 6514 (c); and it is further
ORDERED that the Kings County Clerk is directed to mark its dockets to reflect that the Notice of Mechanic's Lien, dated May 14, 2018, and filed by O.R.B. Star Construction, Inc. with the Kings County Clerk's Office on May 25, 2018, in the amount of $44,250 for labor performed and materials supplied for the improvement of the real property located at 42 Sharon Street, Brooklyn, New York 11211 (Block 2913, Lot 16), owned by Paul Lindahl and Jamie Lindahl, is discharged and canceled; and it is further
ORDERED that the Kings County Clerk is directed to mark its dockets to reflect that the Bond to Release Mechanic's Lien (Bond #347411), issued by SureTec Insurance Company and filed with the Kings County Clerk's Office on December 4, 2019, to release the aforementioned mechanic's lien, is discharged and canceled; and it is further
ORDERED that the action is severed and continued as against the remaining defendant, Muru Contractors, Inc., formerly known as G.C.N.Y. Builders, Inc., with the amended caption to read as follows:
O.R.B. Star Construction, Inc., Plaintiff,
-against-
Muru Contractors, Inc., f/k/a G.C.N.Y. Builders, Inc., Defendant.
Index No. 508502/20
Defense counsel is directed to electronically serve a copy of this decision, order, and judgment with notice of entry on the plaintiffs counsel and to electronically file an affidavit of service thereof with the Kings County Clerk.
This constitutes the decision, order, and judgment of the Court.