Bruno Frustaci Contr., Inc. v Georgie Enters. LLC
Annotate this CaseDecided on February 9, 2005
Supreme Court, Kings County
BRUNO FRUSTACI CONTRACTING, INC., Petitioner,
against
GEORGIE ENTERPRISES LLC, Respondent
24229/04
Francois A. Rivera, J.
Petitioner moves by order to show cause and pursuant to Lien Law §11-b to vacate and
cancel two mechanic's liens filed by the respondent and two lien discharge bonds filed by the
petitioner. Respondent opposes the motion.
JVA Houses Limited Partnership (hereinafter JVA) is the owner of two Brooklyn, New York properties with addresses at 379 Elton Street and 456 Bradford Street. Petitioner is a domestic corporation hired by JVA as a general contractor to rehabilitate these two properties. E.I.C. is an entity hired by the petitioner as a subcontractor to perform certain removal work at these two properties. Georgie Enterprises (hereinafter GE) is a foreign limited liability company organized under the laws of the State of New Jersey and engaged in the business of construction services.
On December 19, 2003, respondent GE filed two mechanics liens. One was against the premises at 379 Elton Street, Brooklyn, New York in the amount of twenty four thousand five hundred dollars ($24,500.00), and the other was against the premises at 456 Bradford Street, Brooklyn, New York in the amount of four thousand five hundred dollars ($4,500.00). The lien on the Elton Street property was premised on the claim that E.I.C. hired GE to perform roof and debris removal and flashing at that site during August and September 2003 and was unpaid the agreed upon value of the services and material in the amount of twenty four thousand five hundred dollars ($24,500.00). The liens on the Bradford Street property was premised on the claim that E.I.C. hired GE to perform roofing removal during September 3 and 4, 2003 and was unpaid the agreed upon value of the services and material in the amount of four thousand five hundred dollars ($4,500.00). GE had a direct contractual relationship with E.I.C. but not with the petitioner. [*2]
On December 22, 2003, respondent served notice of each of the two mechanics liens on JVA by service upon the Secretary of State of New York. On December 29, 2003, respondent served notice of each of the two mechanic liens on E.I.C. by certified mail return receipt requested to 41 University Drive, Newton Pennsylvania 18940. On December 31, 2003, respondent filed with the Kings County Clerks Office (hereinafter KCC) the two affidavits of service pertaining to notices served on JVA and the two affirmations of service pertaining to the notices served on E.I.C.
On January 14, 2004, petitioner filed an undertaking in the form of a lien discharge bond pursuant to Lien Law §19(4) in the amount of twenty six thousand nine hundred and fifty dollars ($26,950.00) for the 379 Elton Street property. On May 6, 2004, he filed a second lien discharge bond in the amount of four thousand nine hundred and fifty dollars ($4,950.00) for the 456 Bradford Elton Street property.
A couple of points should be clarified before addressing the merits of petitioner's claim. First, the instant motion does not address the validity of respondent's two mechanic's liens as against JVA or E.I.C. Second, petitioner's application neither addresses nor contests the underlying merits of respondent's claim that it was unpaid for labor and materials it provided for E.I.C. Finally, there is no dispute that respondent did not file an affidavit of service with the KCC setting forth service of notice of these two mechanic's liens upon the petitioner.
Respondent contends that the service of notice of liens on JVA and E.I.C., the filings of affidavits of service as to these two entities, and petitioner's actual knowledge and receipt of the notices of liens satisfies the notice requirements of Lien Law §11-b. New York's Lien Law is remedial in nature and intended to protect those who have directly expended labor and materials to improve real property at the direction of the owner or a general contractor (West-Fair Elec. Contractors v. Aetna 87 NY2d 148-157 [1995]).
Mechanics' liens have their derivation entirely in statutory law, existing neither in common law nor in equity (Umbaugh Builders, Inc. v. Parr Co. Of Suffolk, Inc., 86 Misc 2d 1036 [1976]). As such, strict compliance with the statutory requirements is mandated and the court does not have discretion to excuse noncompliance (Connecticut Street Development Corp. v. Garber Building Supplies Inc. 216 AD2d 561 [2nd Dept. 1995]; see also HMB Acquisition Corp., v. F.& K. Supply, Inc. 209 AD2d 412 [2nd Dept. 1994]).
Lien Law § 23 provides: 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.
This rule of liberal construction is not without limit however and does not authorize judicial legislation to enlarge the clearly defined scope of purpose of the Lien Law ( Tri-City Elec. Co. v. People 96 AD2d 146-149 [4th Dept. 1983]).
A failure to comply with the service and filing requirements of Lien Law § 11 requires [*3]the discharge of the lien and leaves the court with no discretion to either excuse the noncompliance or to place conditions on the vacatur of the lien (Podolosky v. Narnoc Corp. 196 AD2d 593 [2nd dept. 1993]; see also Murphy Const. Corp. v. Morrissey 168 AD2d 877 [3rd Dept. 1990]).
Lien Law § 19(4) provides as follows: Discharge of lien for private improvement. A lien other than a lien for labor performed or materials furnished for a public improvement specified in this article, may be discharged as follows: (4) Either before or after the beginning of an action by the owner or contractor executing a bond or undertaking in an amount equal to one hundred ten percent of such lien conditioned for the payment of any judgment which may be rendered against the property for the enforcement of the lien.
It is significant to note that upon the posting of the various bonds, a "shifting" occurs and the lien detaches from its original adherence (appropriated funds or property) and attaches to the substitute, the bond. A surety obligation is then substituted. This change is wrought by the statute, independently of the will of the lienor, or of any action or failure to act on his part. The undertaking filed to discharge the lien never admits validity or timely filing of the lien ( Tri-City Elec. Co. v. People. supra 96 AD2d at 146-150 [4th Dept. 1983]).
Effective July 11, 1996, Lien Law §11 was amended to add 11-b and 11-c for improvement commenced on or after such effective date. Lien Law §11-b provides, in pertinent part, as follows: Copy of notice of lien to a contractor or subcontractor. Within five days before or within thirty days after filing a notice of lien in accordance with section ten of this chapter or the filing of an amendment of notice of lien in accordance with section twelve-a of this chapter the lienor shall serve a copy of such notice or amendment by certified mail on the contractor, subcontractor, assignee or legal representative for whom he was employed or to whom he furnished materials or if the lienor is a contractor or subcontractor to the person, firm or corporation with whom the contract was made. A lienor having a direct contractual relationship with a subcontractor or a sub-subcontractor but not with a contractor shall also serve a copy of such notice or amendment by certified mail to the contractor. Failure to file proof of such a service with the county clerk within thirty-five days after the notice of lien is filed shall terminate the notice as a lien.
Turning to the merits of petitioner's claim, it is clear that the respondent did not file proof of service with the KCC of service of the two notices of liens to the petitioner. This omission is not excusable and terminates the mechanic's lien (Podolosky v. Narnoc Corp. supra, 196 AD2d at 593 [2nd dept. 1993]; see also Murphy Const. Corp. v. Morrissey, supra. 168 AD2d at 877 [3rd Dept. 1990]). As such, petitioner's application to vacate and cancel the two aforementioned mechanic's liens filed by the respondent and the two lien discharge bonds filed by the petitioner is granted.
The foregoing constitutes the decision and order of the court. [*4]
______________________
J.S.C.
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