Small v. Wade

595/2023¹ The following papers were read on this special proceeding: Notice of Petition, Verified Petition, Exhibit A (Agreement Between General Contractor and Subcontractor, Addendum), Exhibit B (Letter Dated Aug. 16, 2023, Concrete Failure Cost), Exhibit C (Notice of Mechanic’s Lien, Affidavit of Service), Affidavit of Service After Commencement of Litigation. DECISION, ORDER, AND JUDGMENT I. Questions Presented May a notice of mechanic’s lien be vacated and discharged in a summary proceeding pursuant to Lien Law §19 (6) due to an erroneous description of the address and lot number of the property subject to the lien, even though extrinsic evidence will have to be considered? II. Background Petitioner Lenox Small retained Petitioner Vinneth Barnes, a general contractor, to perform renovation work at the property owned by Petitioner Small at 353 Amboy Street, Brooklyn, New York, also known as Block 3586, Lot 25 (see Verified Petition). Petitioner Barnes, in turn, subcontracted with Respondent Clebert Wade to perform some of the work, described in the subcontract agreement as “Excavation, underpinning, foundation, dry-well, metal stairs and balcony at 353 Amboy St., Brooklyn, NY 11212″ (Exhibit A [Agreement Between General Contractor and Subcontractor]). Both Petitioners claim that Respondent’s work was shoddy and imperfect, resulting in cracking of a foundation wall and a need to redo the work. Respondent Wade filed a notice of mechanic’s lien, describing the labor performed as “construction supervision,” against the properly located at “355 Abboy Street, Brooklyn, New York 11212, Block 3586, lot 24″ (Exhibit C [Notice of Mechanic's Lien]). That address (355 Amboy Street)², is where Petitioner Small resides. He owns both properties. Petitioners commenced this special proceeding, seeking “removal” of the filed mechanic’s lien (see Notice of Petition). They also seek removal of any other mechanic’s liens on “other property or accounts held by Mr. Lenox Small” (id.), and to “void any future similar action brought by Mr. Wade against Mr. Small related to work done at 353 Amboy in the time period pertaining to this matter” (Verified Petition). III. Discussion Lien Law §19 specifies the conditions under which a mechanic’s lien may be discharged: (1) filing by the lienor of a satisfaction of lien, (2) upon the failure to commence an action to foreclose on the lien within one year from the filing of the notice of lien, (3) by court order upon the neglect of the lienor to prosecute the lien, (4) by bonding the lien, (5) by filing a transcript of court judgment evidencing a final determination of the action in favor of the property owner, and (6) by court order summarily discharging the lien for being facially defective (see Lien Law §19). The summary discharge of a mechanic’s lien is narrowly limited to the circumstances described in subdivision 6 of Lien Law §19. Said subdivision provides: (6) Where it appears from the face of the notice of lien that the claimant has no valid lien by reason of the character of the labor or materials furnished and for which a lien is claimed, or where for any other reason the notice of lien is invalid by reason of failure to comply with the provisions of section nine of this article, or where it appears from the public records that such notice has not been filed in accordance with the provisions of section ten of this article, the owner or any other party in interest, may apply to the supreme court of this state, or to any justice thereof, or to the county judge of the county in which the notice of lien is filed, for an order summarily discharging of record the alleged lien. A copy of the papers upon which application will be made together with a notice setting forth the court or the justice thereof or the judge to whom the application will be made at a time and place therein mentioned must be served upon the lienor not less than five days before such time. If the lienor can not be found, such service may be made as the court, justice or judge may direct. The application must be made upon a verified petition accompanied by other written proof showing a proper case therefor, and upon the approval of the application by the court, justice or judge, an order shall be made discharging the alleged lien of record. Said subdivision, as evident from its provisions quoted above, refers to the invalidity of a lien failing to comply with §9 of the Lien Law. Section 9 provides: The notice of lien shall state: 1. The name and residence of the lienor; and if the lienor is a partnership or a corporation, the business address of such firm, or corporation, the names of partners and principal place of business, and if a foreign corporation, its principal place of business within the state. 1-a. The name and address of the lienor’s attorney, if any. 2. The name of the owner of the real property against whose interest therein a lien is claimed, and the interest of the owner as far as known to the lienor. 3. The name of the person by whom the lienor was employed, or to whom he furnished or is to furnish materials; or, if the lienor is a contractor or subcontractor, the person with whom the contract was made. 4. The labor performed or materials furnished and the agreed price or value thereof, or materials actually manufactured for but not delivered to the real property and the agreed price or value thereof. 5. The amount unpaid to the lienor for such labor or materials. 6. The time when the first and last items of work were performed and materials were furnished. 7. The property subject to the lien, with a description thereof sufficient for identification; and if in a city or village, its location by street and number, if known; whether the property subject to the lien is real property improved or to be improved with a single family dwelling or not. A failure to state the name of the true owner or contractor, or a misdescription of the true owner, shall not affect the validity of the lien. The notice must be verified by the lienor or his agent, to the effect that the statements therein contained are true to his knowledge except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. In a proceeding to summarily discharge a subcontractor’s mechanic’s lien pursuant to Lien Law §19, where the petitioner, the property owner, argued that the general contractor was paid in full, the court held: The petition to discharge the appellant’s mechanic’s lien was based upon the assertion that the owner of the property fully paid the general contractor for excavation and foundation work before the lien was filed by the appellant subcontractor. However, insofar as the petitioner sought summary discharge pursuant to Lien Law §19 (6), the notice of lien was not invalid on its face and, thus, was not subject to summary discharge. Accordingly, since there was no defect upon the face of the notice of lien, any dispute regarding the validity of the lien must await trial thereof by foreclosure, and the Supreme Court erred in directing summary discharge of the lien (see Matter of Lowe, 4 AD3d 476 [2004]; Dember Constr. Corp. v. P & R Elec. Corp., 76 AD2d at 546; see also Aaron v. Great Bay Contr., 290 AD2d 326 [2002]; Mario’s Home Ctr. v. Welch, 275 AD2d 839, 840 [2000]; Coppola Gen. Contr. Corp. v. Noble House Constr. of N.Y., 224 AD2d 856 [1996]; Pontos Renovation v. Kitano Arms Corp., 204 AD2d 87 [1994]). (Matter of Northside Tower Realty, LLC v. Klin Constr. Group, Inc., 73 AD3d 1072, 1072-1073 [2d Dept 2010].) In an action to foreclose on a mechanic’s lien, it was held that a motion to dismiss was unavailable: “A court has no inherent power to vacate or discharge a notice of lien except as authorized by Lien Law §19 (6)” (Matter of Northside Tower Realty, LLC v. Klin Constr. Group, Inc., 73 AD3d 1072, 1072 [2010]; see Matter of Luckyland [N.Y.], LLC v. Core Cont. Constr., LLC, 83 AD3d 1073, 1074 [2011]; Bryan’s Quality Plus, LLC v. Dorime, 80 AD3d 639, 640 [2011]; Matter of Gold Dev. & Mgt., LLC v. P.J. Contr. Corp., 74 AD3d 1340, 1341 [2010]). Here, the Supreme Court properly denied the defendants’ motion to dismiss the complaint. The mechanic’s lien at issue was not invalid on its face, and the documentary evidence raised issues of fact as to whether work performed at the subject premises within the statutory eight-month period (see Lien Law §10) was performed pursuant to the parties’ contract (see Matter of Taocon, Inc. v. Urban D.C. Inc., 110 AD3d 423 [2013]; Bryan’s Quality Plus, LLC v. Dorime, 80 AD3d at 640; 72 Pyrgi v. Gkam Corp., 293 AD2d 387, 388 [2002]). “[A]ny dispute regarding the validity of the lien must await trial thereof by foreclosure” (Matter of Northside Tower Realty, LLC v. Klin Constr. Group, Inc., 73 AD3d at 1072-1073; see Bryan’s Quality Plus, LLC v. Dorime, 80 AD3d at 641; see also Matter of Luckyland [N.Y.], LLC v. Core Cont. Constr., LLC, 83 AD3d at 1074; Matter of Gold Dev. & Mgt., LLC v. P.J. Contr. Corp., 74 AD3d at 1341). (Lane Const. Co. Inc. v. Chayat, 117 AD3d 992, 993 [2d Dept 2014].) In another action to foreclose on a mechanic’s lien, Supreme Court granted the defendant’s pre-answer motion to vacate the lien to the extent of reducing it and setting the matter down for a hearing concerning the validity of the remainder of the lien. This was reversed. The Appellate Division held: Contrary to the Supreme Court’s finding, the lien was not defective on its face because it included charges by the plaintiff subcontractor for standby time, since such charges may be the subject of a lien (see L. B. Foster Co. v. Terry Contr., 34 AD2d 638 [1970]; see also Pontos Renovation v. Kitano Arms Corp., 204 AD2d 87 [1994]; Care Sys. v. Laramee, 155 AD2d 770 [1989]). Contrary to the position of the defendant owner, the validity of such charges will have to be determined at trial and the lien for those charges cannot be summarily discharged (see Matter of Northside Tower Realty, LLC v. Klin Constr. Group, Inc., 73 AD3d at 1072-1073). The Supreme Court also improperly set the matter down for a framed-issue hearing concerning the validity of the remainder of the lien to determine if the defendant owner made full payment to the defendant contractor for the installation of the mini-piles prior to the filing of the mechanic’s lien by the plaintiff. The Supreme Court’s determination that a hearing was necessary to explore the merits of the lien and whether it was valid did not provide a basis for a pre-answer framed-issue hearing. Instead, in the absence of a defect upon the face of the notice of the lien, “any dispute regarding the validity of the lien must await trial thereof by foreclosure” (Matter of Northside Tower Realty, LLC v. Klin Constr. Group, Inc., 73 AD3d at 1072-1073; see Matter of Lowe, 4 AD3d 476 [2004]; Dember Constr. Corp. v. P & R Elec. Corp., 76 AD2d at 546; see also Aaron v. Great Bay Contr., 290 AD2d 326 [2002]; Mario’s Home Ctr. v. Welch, 275 AD2d 839, 840 [2000]; Coppola Gen. Contr. Corp., v. Noble House Constr. of N.Y., 224 AD2d at 857; Pontos Renovation v. Kitano Arms Corp., 204 AD2d 87 [1994]). (Bryan’s Quality Plus, LLC v. Dorime, 80 AD3d 639, 640-641 [2d Dept 2011].) Therefore, for the most part, vacatur and discharge by a court of a mechanic’s lien must await a trial in an action to foreclose on the lien. Nonetheless, subdivision (6) of Lien Law §19 does provide limited circumstances under which a lien may be vacated in a summary fashion. The ability to do so is limited to facial matters evidencing an invalid lien. Indicative of the applicability of Lien Law §19 (6) only to facial matters is the following statement: It is fundamental that a mechanic’s lien may be summarily discharged only for defects appearing on its face (Matter of Di-Com Corp. v. Active Fire Sprinkler Corp., 36 AD2d 20, 21 [1st Dept 1971]). Here, the notice of lien recited, among other things, the defendant’s nonpayment, and set forth dates indicating that the lien was filed within four months after plaintiff’s last work on the job. On its face, the notice of lien states that “the last item of work…for which payment was sought [was performed] on September 22, 2006.” The notice was filed on January 12, 2007. This is a facially valid lien (see Matter of Lowe, supra). Because there is no defect upon the face of the notice of lien, any dispute regarding the validity of the lien must await trial thereof by foreclosure (id.). (HamiltonAir Co., Inc. v. Gould, 17 Misc 3d [Civ Ct, NY County 2007].) “Lien Law §19 provides the grounds for the discharge of a mechanic’s lien for private improvement. The statute contains no provision which authorizes the court to vacate or discharge a mechanic’s lien based upon the interest of justice. ‘In the absence of a defect upon the face of the notice of lien, any dispute regarding the validity of the lien must await trial of the foreclosure action’ (Care Sys. v. Laramee, 155 AD2d 770, 771). Although Lien Law §39 provides that a willfully exaggerated lien is void (see, Goodman v. Del-Sa-Co Foods, 15 NY2d 191, 194-195), the issue of wilful and/or fraudulent exaggeration is also one which ordinarily must be determined at the trial of the foreclosure action (see, Matter of Upstate Bldrs. Supply Corp. [Maple Knoll Apts.], 37 AD2d 901, 902, appeal dismissed 30 NY2d 515). Defendants failed to meet their burden as the proponents of a motion for summary discharge of the lien (see, Care Sys. v. Laramee, supra, at 771) and, therefore, Supreme Court’s order granting the motion must be reversed.” (Coppola Gen. Contr. Corp. v. Noble House Constr. of N.Y., 224 AD2d 856, 857- 858 [3d Dept 1996].) In a case where the description of the work performed was challenged as not falling within the ambit of a mechanic’s lien, the court rejected a Lien Law §19 (6) facial challenge: This petition to discharge a mechanic’s lien raises an interesting question of law: Must the lien be discharged because sloppy, ambiguous language is used in the notice of lien to describe the work performed? Under section 3 of the Lien Law, a lien attaches for labor “for the improvement of real property” and this is defined in section 2 (4), as including, “the demolition, erection, alteration or repair of any structure”. The notice of lien in this case recited that: “The labor performed was the management and supervision of obtaining new building permits for recommencement of construction.” The owner petitioner argues that such labor does not fall within the definition of labor for which a lien may attach and therefore the lien must be discharged pursuant to Lien Law §19 (6). This subdivision provides: “Where it appears from the face of the notice of lien that the claimant has no valid lien by reason of the character of the labor or materials furnished and for which a lien is claimed*** the owner*** may apply*** for an order summarily discharging of record the alleged lien.” It has long been recognized that supervision is “work which may form the basis of a lien.” (Carl A. Morse, Inc. v. Rentar Indus. Dev. Corp., 85 Misc 2d 304, 309; accord, Goldberger-Raabin, Inc. v. 74 Second Ave. Corp., 252 NY 336, 341- 342; Stryker v. Cassidy, 76 NY 50.) Such supervision, of course, must be of construction work, and not merely the procurement of bids and negotiation of contracts or, in this case, the procurement of building permits. The lienor, in opposing this application, states that the labor referred to in the notice of lien “consisted of supervising the actual construction, i.e., demolition, erection, alteration and repair at the construction site”, which was necessary in order to obtain new building permits for recommencement of construction. The owner does not dispute that a lien may attach for such labor, but maintains that the lienor is bound by the language employed in the notice of lien to describe the character of the labor, and that the notice does not refer to work at the construction site. The argument advanced by the owner finds support in Pascual v. Greenleaf Park Land Co. (245 NY 294, 298), a leading case which held that: “A notice of lien must be sufficient in essentials in and of itself.” However, that case involved a notice of lien which failed to state the value of the work performed or the amount due for such work, exclusive of work which was to be performed in the future. The court held that “extrinsic evidence may not be received to cure the defect.” (Supra, at 298.) Without such extrinsic evidence, the amount of the lien could not be determined, and, therefore, the notice of lien was clearly deficient. A different situation exists in this case with respect to the alleged deficiency in the description of the work performed by the lienor. It is not claimed that the lienor has failed to provide a description, but rather, that the description does not suffice. The test of whether a notice of lien suffices is whether it contains sufficient information to apprise interested parties of the services rendered or materials furnished and the value thereof. (See, Jensen, Mechanics’ Liens §188, at 202 [4th ed 1963]; Meo v. Skellyway Constr. Co., 30 AD2d 606.) In making this determination, effect must be given section 23 of the Lien Law which provides that: “This article is to be construed liberally to secure the beneficial interests and purposes thereof. A substantial compliance with its several provisions shall be sufficient for the validity of a lien and to give jurisdiction to the courts to enforce the same.” The Court of Appeals in the Pascual case (supra) summarized the test of the sufficiency of a lien notice as follows: “The actual interest of the claimant must be spelled out therefrom and will be whenever possible, but those who have a legal interest in the subject of the character and extent of the demand upon which the lien is based are entitled to be advised thereof by the notice of lien.” (Supra, at 298; emphasis supplied.) Thus, both the statute and case law require that a notice of lien be construed liberally and given effect, providing it suffices to give notice of the claim to the interested parties. In this case, it would have been unreasonable for the petitioner to conclude that the notice of lien filed by the respondent referred to the management and supervision of the ministerial procurement of building permits for the recommencement of construction. The petitioner was well aware of the services performed. In attempting to discharge this lien he is merely taking advantage of the poorly worded language in the notice of lien. The Legislature never intended the discharge provision in the Lien Law to be a sword to strike a valid lien. It was intended to be a shield against improper liens. Therefore, the court finds that the notice of lien filed by the respondent in this case was sufficient to apprise the owner that the management and supervision was of work at the construction site, which was necessary in order to obtain the new building permits and for which a lien may attach. Accordingly, the motion to summarily discharge the mechanic’s lien filed by the respondent is denied. (Matter of Henry & John Assoc. v. Demilo Constr. Corp., 137 Misc 2d 354, 354-356 [Sup Ct, Queens County 1987].) On summary application to vacate a mechanic’s lien under subdivision 6 of Lien Law §19 — providing that a lien may be discharged where it appears from the face of the notice of lien that the claimant has no valid lien by reason of certain defects thereon — where affidavits submitted by the parties involved a question whether notice of lien had been timely filed, such objections raised issues of fact for disposition upon a trial rather than upon a motion to vacate the lien (see Matter of Miller (Schiavori), 133 NYS2d 421 [Sup Ct, Suffolk County 1954]). Under subdivision 6 of Lien Law §19, a mechanic’s lien could not be summarily discharged where the existence of an alleged waiver of the right to file a lien did not appear from the notices of lien themselves but only from other documents concerning whose operative scope there was a dispute and it did not appear that the notices of lien had not been properly filed (see Matter of Harbour Green Estates v. North Shore Elec. Corp., 7 Misc 2d 541 [Sup Ct, Nassau County 1957]). “If the questions of fact which are material to a summary discharge of the lien under the provisions of section 19, subdivision (6) of the Lien Law are disputed, the matter cannot be summarily decided, as such questions of fact can only be determined upon a trial. (Matter of Jory Constr. Corp. [Westchester Square Sash & Door Co.], 6 Misc 2d 701; Matter of Yeshiva Rabbi Dov Revel of Forest Hills v. Nonpareil Concrete Co., 9 Misc 2d 252; Matter of Saddle Rock Homes Corp., 107 N. Y. S. 2d 900.)” (Matter of Oster v. Townsend, 31 Misc 2d 253 (Sup Ct, Oneida County 1961.) While an identification of the “property subject to the lien, with a description thereof sufficient for identification; and if in a city or village, its location by street and number, if known” must be set forth on the notice of mechanic’s lien, theoretically an effort to prove an incorrect listing would entail going beyond the face of the lien. However, there is case law sanctioning such an effort. In Matter of M.M.E. Power Enters. (Wolf & Son Enters.) (205 AD2d 631, 632 [2d Dept 1994]), the court approved canceling liens inasmuch as “The above description of the property subject to the liens was inadequate since it failed to limit the liens to the particular sublots enumerated. Specifically, there was no language in either lien which excluded the condominium common areas or confined the liens to the sublots enumerated [citations omitted].” In Matter of Bridge View Tower, LLC v. Roco G.C. Corp. (69 AD3d 711 [2d Dept 2010]), the court held that a mechanic’s lien description of “189 Bridge Street” was deficient inasmuch as the location was a condominium development and the individual block and lots were not listed; this was a violation of Lien Law §9 (7). ” ‘The description of the property in the notice of lien created a blanket lien which is not valid as against the individual units, including the unsold units retained by the petitioner, or the common elements of the condominium’ ” (Matter of Bridge View Tower, LLC, 69 AD3d at 712). Since the lien was invalid due to an improper property description, it was subject to summary vacatur and discharge. Moreover, the attempt by the lienor to amend the lien was found invalid because Lien Law §12-a presupposes the existence of an initially filed valid lien. And, further, in DiCamillo v. Navitsky (90 Misc 2d 923), the court noted the dilemma when an incorrect location is cited as a ground for discharging a mechanic’s lien. While a Lien Law §19 (6) summary discharge is available only for notice of lien defects appearing on the face of the notice, the only way to prove an incorrect property location is through extrinsic evidence. There is no question but that a notice of lien containing a description which is insufficiently particular is subject to summary discharge pursuant to section 19 of the Lien Law (see, generally, Jensen, Mechanics’ Liens [4th ed], §193). The difficulty in this case, however, is that the description of the liened premises is clearly sufficient to identify one particular parcel (i.e., Lot No. 1) to the exclusion of all others, but that the parcel so identified is not the intended parcel (i.e., Lot No. 3). In addition, the foregoing defect is not apparent “from the face of the notice of lien” (Lien Law, §19, subd [6], supra), but only from the extrinsic statements made in support of the within application. Ordinarily, the only remedy available to an owner who establishes a defect by extrinsic proof is to either bond the lien (Lien Law, §19, subd [4]) or to compel the lienor to commence a foreclosure action (Lien Law, §59) and then move for summary judgment (Matter of Jory Constr. Corp. [Westchester Sq. Sash & Door Co.], 6 Misc 2d 701, 702). Such procedure, however, serves no useful purpose where, as here, there are no issues of fact concerning the existence of the defect. In such circumstances, and in the absence of a request for leave to amend, summary discharge should be available to the owner (see Matter of Oster v. Townsend, 31 Misc 2d 253, 255). (Id. at 925.) Based on the foregoing analysis of the law with respect to the summary vacatur and discharge of mechanics’ liens, this Court holds that although the issue of an incorrect description of the affected property in a notice of lien — the address and the lot number — entails considering matters beyond the face of the notice of lien, the lien may nonetheless be vacated and discharged pursuant to Lien Law §19 (6). Considering extrinsic evidence regarding the accuracy of the location of the work performed is different from any issues regarding whether the general contractor was fully paid, the timing of the work, the accuracy of the amount claimed to be owed, willful or fraudulent exaggeration of the lien, whether certain work was lienable, or whether notice was timely filed. It would appear that an erroneous property location goes to the heart of the validity of the lien, which would vitiate the lien at its inception, such that vacatur and discharge should not have to await a trial in a plenary action by the lienor to foreclose. As a matter of public policy — even of common sense — it would be illogical to tie up a property with a lien imposed against it where the property was not one where work and labor were performed by a contractor or subcontractor. As to the facts in the within special proceeding, Petitioners have established that Respondent subcontractor Clebert Wade contracted to perform work at 353 Amboy Street, Brooklyn, Block 3586, Lot 25, yet described the property subject to the lien as “355 Abboy Street, Brooklyn, New York 11212, Block 3586, lot 24.” (The misspelling of Amboy as “Abboy” is not deemed a defect in and of itself because block and lot numbers are set forth.) There is no statutory support for any further relief sought by Petitioners: vacatur and discharge of any other mechanic’s liens on other property or accounts held by Petitioner Lenox Small and to void any future similar action brought by Respondent Clebert Wade against Petitioner Lenox Small related to work done at 353 Amboy Street, Brooklyn, New York, in the time period pertaining to this matter. IV. Conclusion IT IS HEREBY ORDERED, ADJUDGED, and DECREED as follows: (1) The petition in the within special proceeding is GRANTED to the extent that (a) It is determined that the notice of mechanic’s lien filed by Respondent Clebert Wade, with an address of 1336 East 84th Street, Brooklyn, New York, against Lenox Small, with an address of 355 Amboy³ Street, Brooklyn, New York, Block 3586, Lot 24, is invalid. (b) The County Clerk is ORDERED to vacate and discharge the aforesaid notice of mechanic’s lien. (2) To the extent that the petition seeks vacatur and discharge of any other mechanic’s liens on other property or accounts held by Petitioner Lenox Small and to void any future similar action brought by Respondent Clebert Wade against Petitioner Lenox Small related to work done at 353 Amboy Street, Brooklyn, New York, Block 3586, Lot 25, in the time period pertaining to this matter, it is DENIED. Dated: December 11, 2022