5 BROS., INC. v. D.C.M. OF N.Y., LLC 500824/2011.
2013 NY Slip Op 50395(U)
5 BROTHERS, INC. A/K/A AVON CONTRACTORS;, Plaintiffs, v. D.C.M. OF NEW YORK, LLC, D.C.M. OF NEW JERSEY, LLC, BRIAN ABBEY, ALEXANDER'S KING PLAZA CENTER, INC., ALEXANDER'S OF BROOKLYN, INC., BEST BUY CO., INC., POLO ELECTRIC CORP., C.R. LAURENCE CO, INC., JE BERKOWITZ, LP, DIAM-N-BLU MECHANICAL CORP., VINTAGE FLOORING & TILE, ANIXTER, INC., THE DAVIDSON GROUP, INC., and WELLS FARGO BANK, N.A.;, Defendants.
Supreme Court, Kings County.
Decided March 21, 2013.
Vincent Pallaci, Esq. Kushnick Pallaci PLLC 445 Broad Hollow Road, Suite 124 Melville, NY 11747 Attorney for General Contractor, D.C.M. of New York, LLC:
Susan Shaw, Esq. Hoguet Newman Regal & Kenney, LLP 10 E. 40th Street, 35th Floor New York, NY 10016 Attorney for J.E. Berkowitz, L.P.
CAROLYN E. DEMAREST, J.
In this action, general contractor D.C.M. of New York, LLC ("DCM") moves pursuant to New York's Lien Law § 19(6), to discharge a mechanic's lien filed by subcontractor J.E. Berkowitz, L.P. ("JEB"). JEB opposes the motion, and, in the alternative, cross-moves to amend its notice.
The underlying dispute stems from a construction improvement project for Best Buy retail store at Kings Plaza Mall. DCM, the general contractor for the project, entered into agreements with various subcontractors, including Manty Metals, Inc. ("Manty") for glass and glazing work, including all labor, materials, and equipment. In turn, Manty contracted with JEB for the supply of glass, glass doors, and hardware materials to be used on the project. According to JEB, DCM entered, for the benefit of JEB, into a Joint Check Agreement with Manty, which authorized DCM to issue joint checks to Manty for the materials supplied by JEB. JEB supplied the materials as agreed, but claims that DCM did not pay Manty in full for the materials supplied by JEB, and $57,420.51 of the $105,954.22 contract amount remains unpaid to date. On April 19, 2011, JEB filed a notice pursuant to New York's Lien Law.
Before the commencement of this action, on June 8, 2011, DCM brought a petition pursuant to Lien Law § 19(6) to discharge the lien, under a different index number (see D.C.M. of New York, LLC v J.E. Berkowitz L.P., 13096/2011). On September 6, 2011, JEB opposed DCM's petition and cross-moved to amend the notice. JEB claims that, at oral argument before Justice Saitta, counsel for DCM did not appear; accordingly, DCM's Petition was denied, and JEB's cross-petition was deemed moot.
On September 23, 2011, 5 Brothers, Inc., another of the subcontractors on the Best Buy project, initiated this action against DCM seeking, inter alia, judgment for unpaid amounts or foreclosure on its mechanic's lien. 5 Brothers named, among other defendants, seven additional parties who had also filed mechanic's liens against DCM in connection with the project, including JEB. DCM filed its answer and cross-claim on October 20, 2011, and on December 14, 2011, JEB answered and cross-claimed against DCM for breach of contract, against DCM and Abbey, its managing member, for diversion of trust assets in violation of Lien Law Article 3-A, for unjust enrichment against DCM, for quantum meruit against DCM, Alexander's (the property owner), and Best-Buy (the property lessee), and for foreclosure of its mechanic's lien.
DCM and Abbey counterclaimed against JEB on February 24, 2012, claiming that its lien was willfully exaggerated. By motion dated October 10, 2012, DCM moved to vacate the lien, to dismiss JEB's cross-claim for foreclosure of its lien, and for costs. JEB, by cross-motion dated October 23, 2012, opposed DCM's motion and moved to amend the lien notice in the alternative.
"A mechanic's lien is a creation of statute[,] and if there is entirely lacking from the notice of lien one of the material provisions required by the statute, it never comes into being as a lien" (Blackman-Shapiro Co. v Salzberg,
The notice of lien shall state:
1-a. The name and address of the lienor's attorney, if any.
Section 23 instructs that "[t]his 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." Furthermore, the Lien Law provides, at § 12-a, for an amendment of a notice nunc pro tunc, but the provision presupposes a valid lien and "may not be construed to revive an [otherwise] invalid notice of lien" (Northeast Restoration Corp v K & J Const. Co., L.P.,
It is not disputed that JEB's notice complies with subdivisions 2 through 7 of § 9. However, JEB argues that the notice is defective because it does not comply with subsections 1 and 1-a, specifically because a) JEB includes a P.O. Box in its principal place of business, b) JEB does not identify a place of business within the State of New York, c) JEB does not identify an attorney with an office within the State of New York, and d) JEB, a limited partnership, does not, list the name of its partners on the lien notice.
One of the main purposes of Lien Law § 9's notice is to provide information to the owner so that "he may, upon inquiry, ascertain whether or not the material has been actually furnished and the services have been actually rendered, and the value thereof"(Matter of Lycee Francais de NY v Calagna,
DCM's argument that the lien is invalid because JEB includes a P.O. Box in its place of business is misplaced. JEB contends, and the annexed notice reveals, that while it did include its P.O. Box in its business address, it also listed its complete business address as: One Gateway Blvd, Pedricktown, NJ 08067. DCM relies on Fibernet Telecom Group, Inc. v East Coast Optical Services, (
DCM's contention that JEB's lack of a principal place of business in the State of New York invalidates the lien is similarly unavailing. At least one court has determined that when a foreign corporation lacks a principal place of business within the state, it is not required to give a fictitious address (see Garden State Brickface Co. v Artcourt Realty Corp.,
Finally, DCM calls for the lien's vacatur on the grounds that partnership lienors are required to list the names of its partners. DCM is correct in that the statute plainly calls for the inclusion of the names of a partnership's partners. New Jersey, like New York, provides for the creation of limited partnerships, consisting of both general partners and limited partners (see N.J.S.A.§ 42:2A). New York's CPLR § 310-a states, in part, that "[p]ersonal service upon any domestic or foreign limited partnership shall be made by delivering a copy personally to any managing or general agent or general partners of the limited partnership in this state." Thus, for the purpose of providing notice so that one could serve process or verify the lien of a limited partnership, a lien notice must include, at the least, the name of its general partners. JEB's failure to do so is a defect that must be cured (see Kane v Hutkoff, 81 App Div 105, 109 [1st Dept 1903]).
JEB's failure to include the general partners' names and an attorney upon whom service can be made in New York does not render the lien invalid so as to preclude amendment as JEB has substantially complied with § 9's requirements by including, inter alia, the name of the property owner, the lessee, and the company with whom the contract was made, the materials furnished and the value thereof, the amount unpaid, the time when the materials were furnished, and an accurate description of the property subject to the lien. The cases relied upon by DCM, which invalidated liens based on defects in compliance with § 9, are distinguishable as they involve substantial defects, such as the omission of the value of labor or materials provided, which is the "sine qua non of a valid notice" (Pascual v Greenleaf Park Land Co., 245 N.Y. 294 )(see also, e.g., Empire Pile Driving Corp. v Hyland Sanitary Serv.,
Moreover, DCM, which is not an existing lienor, mortgagee, or a purchaser in good faith, does not fall within one of the enumerated categories of § 12-a, which precludes amendment nunc pro tunc upon a showing of prejudice, and, thus, cannot oppose the amendment on the grounds of prejudice (see Commander Elec., Inc. v Lerner,
Accordingly, JEB is granted leave to serve and file an amended lien notice within 20 days, which notice will be deemed amended nunc pro tunc. Should JEB fail to timely serve and file such amended notice curing the defects in its original notice, DCM's motion to dismiss will be granted, and JEB's lien will be discharged.
JEB is granted leave to serve and file an amended lien notice within 20 days, which notice will be deemed amended nunc pro tunc. Should JEB fail to timely serve and file such amended notice curing the defects in its original notice, DCM's motion to dismiss will be granted, and JEB's lien will be discharged.
The foregoing constitutes the decision and order of the Court.
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