Opinion
20688-00.
Decided March 18, 2005.
Reed Smith, LLP, New York, New York, counsel for plaintiff.
Canfield, Madden Ruggiero, LLP, Douglaston, New York, counsel for defendants, (for Vultaggio).
Keith H. Richman, Esq. Garden City, New York, (for Kean Development Co., Inc.).
ORDER
The following papers were read on Defendant Vultaggio's motion for summary judgment and Plaintiff's cross-motion for partial summary judgment:
Notice of Motion dated July 8, 2004;
Affirmation of John P. Ruggiero, Esq. dated July 8, 2004;
Affidavit of Domenick Vultaggio sworn to on July 8, 2004;
Notice of Cross-motion dated July 26, 2004;
Affirmation of William M. Rifkin, Esq. dated July 26, 2004;
Affidavit of James Haskel sworn to on July 26, 2004;
Reply Affirmation in Support of Motion and in Opposition to Cross-motion of John P. Ruggiero, Esq. dated July 30, 2004;
Reply Affirmation of William M. Rifkin, Esq. dated October 4, 2004;
Reply Affidavit of James Haskel sworn to on October 4, 2004;
Affidavit in Opposition to Cross-motion of Jeff Lippert sworn to on December 12, 2004;
Surreply Affidavit of John P. Ruggiero, Esq. dated December 14, 2004;
Further Reply Affidavit of James Haskel sworn to on January 7, 2005.
Defendants, Donald J. Vultaggio and Ilene Vultaggio, move for an order deeming the mechanic's lien filed January 3, 2000 to have expired and thereby declared invalid and for summary judgment dismissing the first and third causes of action of the complaint as to said Defendants pursuant to CPLR 3212.
Plaintiff, Walker Zanger, Inc., cross-moves for partial summary judgment on the second cause of action for breach of contract against Defendant Kean Development Company, Inc. and against Defendants Donald J. Vultaggio and Ilene Vultaggio on the third cause of action for unjust enrichment.
BACKGROUND
On or about August 17, 1998, Defendant, Kean Development Company, Inc. ("Kean"), the construction manager on a project to construct a custom-built residence for Defendants Donald J. and Ilene Vultaggio ("Vultaggio") on property located at Sands Light Road, Sands Point, New York, hired Plaintiff Walker Zanger, Inc. ("W Z") as a subcontractor, pursuant to an oral agreement, to supply and fabricate certain Fontenay Clair French Limestone for installation on the exterior of the building at a total cost of $1,223,145.63.
W Z filed a duly verified notice of mechanic's lien against the premises on January 3, 2000 claiming an outstanding balance due in the sum of $433,278.57 for limestone materials delivered to the premises. Thereafter, on December 29, 2000 Plaintiff commenced this action seeking recovery based on breach of contract (second cause of action), unjust enrichment (third cause of action) and to foreclose its mechanic's lien (first cause of action) by filing a summons and complaint and notice of pendency in the office of the Nassau County Clerk.
The homeowners, the Vultaggios, seek summary judgment dismissing the first and third causes of action of the complaint (foreclosure of mechanic's lien and unjust enrichment) contending that the foreclosure claim is untenable since the mechanic's lien filed by Plaintiff against the Sands Light Road premises expired and is, therefore, invalid. Moreover, they maintain they may not be held personally liable for payment to the subcontractor whose contract was made directly with Kean as general contractor and not with them.
Plaintiff has cross-moved seeking summary judgment against Kean for breach of contract and against Vultaggio for unjust enrichment. In this regard W Z avers that, at the very least, the Defendants are indebted to it in the sum of $273,509.65, as and for the miscellaneous limestone which was installed on the exterior of the Vultaggio residence between August, 1998 through December, 1999.
DISCUSSION
A. First Cause of Action
Pursuant to Lien Law § 17, a mechanic's lien expires as a matter of law one year after filing unless, within that time, it is extended by court order or an action is brought to foreclose it. In the latter instance, the accompanying notice of pendency automatically extends the life of the lien for three years. CPLR 6513. If, however, the notice of pendency is not extended within that three-year period, the lien itself expires by operation of law. Gallo Brothers Construction, Inc. v. Peccolo, 281 AD2d 811, 813 (3rd Dept. 2001); Modular Steel Systems, Inc. v. Avlis Contracting Corp., 89 AD2d 891 (2nd Dept. 1982).
The rule set forth in CPLR 6513, that a notice of pendency shall be effective for a period of three years and an extension must be requested before the expiration of the three-year period, is "exacting" and "a 'notice of pendency that has expired without extension is a nullity'." Matter of Sakow, 97 NY2d 436, 442 (2002), quoting 13 Weinstein-Korn-Miller, NY Civ. Prac. ¶ 6513.04.
Where, as here, the Plaintiff subcontractor fails to move to extend the notice of pendency within the three-year period, as required by CPLR 6513, its mechanic's lien terminates at the expiration of the three-year period, as a matter of law, and, thus, a Plaintiff can no longer maintain a cause of action to foreclosure the mechanic's lien. A.C. Green Electrical Contractors, Inc. v. SMG Const. Inc., 279 AD2d 287 (1st Dept. 2001); and LM Plumbing, Inc. v. Decker, 219 AD2d 619, 619-20 (2nd Dept. 1995), lv. app. den., 87 NY2d 806 (1996).
While it is undisputed that the mechanic's lien in this case was extended by the filing of a notice of pendency on December 29, 2000 in connection with the commencement of this lawsuit, the notice of pendency itself was never extended. Both the notice of pendency and the mechanic's lien, therefore, expired by operation of law on December 29, 2003 (Spartan Concrete Corp. v. Harbour Valley Homes, Inc., 71 AD2d 950 [2nd Dept. 1979]), notwithstanding Plaintiff's assertion to the contrary. Thus, the first cause of action must be dismissed.
B. Third Cause of Action
Although Lien Law § 17 dictates that a mechanic's lien and the notice of pendency that extends it expire where, as here, the Plaintiff fails to obtain an extension of the notice, pursuant to CPLR 6513, W Z is not left without a remedy. To the extent that the complaint can be construed to assert causes of action in addition to mechanic's lien foreclosure such as recovery in quantum meruit [unjust enrichment] or breach of contract those causes of action remain viable and are not defeated by expiration of the notice of pendency. MCK Building Associates, Inc. v. St. Lawrence University, 5 AD3d 911, 914 (3rd Dept. 2004).
It is well established that a landowner who has had the benefit of a subcontractor's services, pursuant to a contractual obligation with a general contractor, is not liable for the work done by the subcontractor unless the landowner has, in some way, agreed to pay for it. The mere fact that the landowner has consented to the improvements provided by the subcontractor, and accepted their benefits, does not make him liable to the subcontractor whose remedy lies against the general contractor. Sybelle Carpet and Linoleum of Southampton, Inc. v. East End Collaborative, Inc., 167 AD2d 535, 536 (2nd Dept. 1990).
While W Z is correct that a subcontractor may recover on the theory of quasi-contract and unjust enrichment where there is evidence that the owner expressly consented to or otherwise assumed an obligation to pay the subcontractor (M. Palladino, Inc. v. J. Lucchese Son Contracting Corp., 247 AD2d 515 [2nd Dept. 1998]), the record on this motion is devoid of any evidence and the complaint fails to allege that the Vultaggio Defendants expressly agreed to pay Plaintiff directly for the labor and materials it claims to have provided. Since they contracted only with their general contractor and did not enter into any agreement, for payment or otherwise, directly with Plaintiff, the Defendant homeowners are entitled to summary judgment dismissing the third cause of action for unjust enrichment asserted against them. M. Paladino, Inc. v. J. Lucchese Son Contracting Corp., supra at p. 515-16; and Perma Pave Contracting Corp. v. Paerdegat Boat Racquet Club, Inc., 156 AD2d 550, 551 (2nd Dept. 1989). Even crediting the evidence that Defendant Donald Vultaggio made a settlement offer to Plaintiff, conditioned upon its delivery of the remaining goods in its possession and upon the successful delivery and installation of all items (memo dated November 29, 2000), there was no express promise by the Vultaggios to pay Plaintiff directly for its work. No settlement was ever agreed upon and W Z apparently never complied with the stated conditions contained in the memo on which it relies.
In opposition to Plaintiff's motion for summary judgment, Kean asserts that Plaintiff's work on the project was terminated on or about December 6, 1999 as a result of numerous breaches of contract including: (1) the failure to deliver the limestone in a timely manner and in sequential order; (2) the failure to properly fabricate the limestone; and (3) the delivery of damaged (cracked/incomplete) limestone. As a result of this termination, Kean asserts that it was forced to hire a remedial supplier to remedy and complete the work which Plaintiff failed to perform under the terms of its agreement. It is Kean's contention that W Z is liable for damages that far exceed any sums it erroneously claims are due and owing from Defendants. Given the disputed factual issues vis-a-vis Plaintiff's performance under its contract with Kean, and the extent, if any, to which money is due and owing to W Z, its cross-motion for partial summary judgment against Kean must be denied.
Accordingly, it is,
ORDERED, that the motion of Defendants Donald J. Vultaggio and Ilene Vultaggio for summary judgment dismissing the action as asserted against them; tio wit: the first and third causes of action is granted, and the matter is hereby severed and continued as to Defendant Kean Development Company, Inc.; and it is further,
ORDERED, that Plaintiff's motion for partial summary judgment is denied.
This constitutes the decision and Order of the Court.