Coughlin v Tully

[*1] Coughlin v Tully 2006 NY Slip Op 50449(U) [11 Misc 3d 1070(A)] Decided on March 14, 2006 Supreme Court, Suffolk County Spinner, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 14, 2006
Supreme Court, Suffolk County

SCOT COUGHLIN and S. B. COUGHLIN, INC., Plaintiffs,

against

SHAWN TULLY, Defendant.



2005-18504



Paltrowitz & Kaufman, LLP

Attorneys for Plaintiffs

230 Park Avenue, Suite 1000

New York, New York 10169

Esseks, Hefter & Angel, LLP

Attorneys for Defendant

108 East Main Street, PO Box 279

Riverhead, New York 11901-0279

Jeffrey Arlen Spinner, J.

Upon the following papers numbered 1 to 159 read on these Motions:

Defendant's Order to Show Cause & Supporting Papers 1-8, & Exhibit A

Plaintiff's Affirmation in Opposition and Supporting Papers 9-13

Defendant's Notice of Application & Supporting Papers 14-32, & Exhibits A-D

Plaintiff's Affirmation if Opposition & Supporting Papers 33-38, & Exhibits A-C

Defendant's Reply Affirmation & Supporting Papers 39-46, & Exhibit E

Defendant's Notice of Motion & Supporting Papers 46-97, & Exhibits A-M

Plaintiff's Notice of Cross-Motion & Supporting Papers 98-101, & Exhibits A-C

Defendant's Reply Affirmation and Affirmation In Opposition & Supporting Papers 114-159,

& Exhibits N-Y

it is,

ORDERED, that the application of Defendant under Index No. 2005-18504 (Motion Sequence 001) is hereby granted to the extent set forth herein below, the application of SHAWN TULLY under Index No. 2005-11317 (Motion Sequence 002) is hereby granted in all respects, the application of the Defendant under Index No. 2005-18504 (Motion Sequence 002) is hereby granted solely to the extent set forth herein below, and the cross-application of the Plaintiff's under Index No. 2005-18504 [*2](Motion Sequence 003) is hereby denied in all respects.

Defendant moves this Court, under Index No. 2005-18504 (Motion Sequence 001), for an Order, pursuant to Lien Law § 20, discharging the Notice of Mechanics Lien filed by Plaintiffs in the Office of the Clerk of Suffolk County on April 22, 2005, against premises located at 1440 Scuttle Hole Road, Bridgehampton, Town of Southhampton, Suffolk County, New York (SCTM designation District 0900, Section 038.00, Block 001.00, Lot 008.002), and against SHAWN TULLY as the owner of the premises.

The relief requested in this application is clearly decided by the ruling of this Court herein below, under Index No. 2005-11317 (Motion Sequence 002), obviating the need for further discussion of this segment of this series of applications. That portion of this application seeking payment of a sum of money into the Court is denied as unnecessary, in light of the ruling below.

SHAWN TULLY moves this Court, by Notice of Application under Index No. 2005-11317 (Motion Sequence 002), for an Order cancelling the tow Mechanics Liens filed by Lienor SCOT COUGHLIN and S.B. COUGHLIN, INC. (Collectively COUGHLIN), on April 22, 2005, because of the Lienors failed to comply with the Order of Justice Robert Webster Oliver, Supreme Court, Suffolk County, dated September 30, 2005, and entered on October 6, 2005, directing service of itemized statements of the aforementioned liens.

The determinative paragraph of said Order by Justice Oliver clearly indicates the directive of the Court:

"Here, Coughlin's specifications for labor and other sums for materials listed under a general description of the work performed is clearly insufficient as it fails to comply with the requirements of Lien Law § 38 (see Matter of 819 Sixth Ave. Corp. V. T & A Associates Inc., 24 AD2d 446, 260 NYS2d 984 [1st Dept. 1965]; Matter of Sperry v. Miller, 254 AD 819, 5 NYS2d 249 [4th Dept. 1938]). Accordingly, this application is granted to the extent that Coughlin is directed to furnish further and sufficient itemized statements in compliance with petitioner's demands dated April 25, 2005 within twenty (20) days of the date of service of this order with notice of entry. Coughlin's statements shall be further itemized by specifying the following: the items of skilled or unskilled labor; number of hours thereof; rate per hour; dates worked; the materials used; quantity and cost of each item of material; the terms of the contract under which the labor and material was furnished; identify which Lienor provided what labor and material; and which of the two premises subjected to the liens was the location where each item of labor and material was furnished. If Coughlin fails to comply with this, the petitioner shall be entitled to an order cancelling the two liens which are the subject of the proceeding".

The Affidavit of Service submitted by Applicant regarding service of the above referenced Order of Justice Oliver states that it was served, with Notice of Entry, on Counsel for COUGHLIN, on the 14th day of October, 2005. Furthermore, said Order clearly indicates that the two Mechanics Liens that said decisions is in regard to are those filed by COUGHLIN, on or about April 22, 2005, in the sums of $106,895.91 and $54,750.00, regarding the parcels of real property located at 2840 Stars Road, East Marion, Town of Southold, State of New York, and 1140 Scuttlehole Road Bridgehampton, Town of Southampton, State of New York. In the Memorandum of Law submitted [*3]by Counsel for TULLY, it is further clarified that, in reference to the Town of Southold Premises, COUGHLIN actually filed said lien against two parcels as one lien, referencing two separate Suffolk County Tax Map designations, the second parcel having the address 3995 Private Road, East Marion. No specific information regarding labor and material specifically expended at this other parcel has been submitted by COUGHLIN.

As Clarification of both the requirement of Sperry v. Millar (supra ), as cited by Justice Oliver, and the specific intentions of Justice Oliver's, counsel for TULLY cited Callipari v. 516 East 11th Street Corporation, 166 Misc 79, 80 NYS2d 384, 385 ( Sup. Ct. NY Co. 1937), in their Memorandum of Law wherein the Court stated:

"The statute requires a statement to the extent indicated, which is in effect a particularization or amplification of the claim of the lienor. The statement furnished does not comply with the statute , for the reason that the items specified in the statute would require the lienor to indicate the value or the approximated value of the items used. This criticism likewise applies to the labor. The lienor has bulked the items of materials in the sum of $1,015.25 and labor $2,169.75. This information is contained in the lien field. It was intended by the statute that there be an itemization of the claim so that the owner or contractor might check against the claim of the lienor"

The additional documents submitted by COUGHLIN clearly demonstrate the lienor has frustrated the intentions of both the statute and the prior ruling of Justice Oliver, and therefore has failed to comply with an Order of the Court. The twenty (20) days after service of Justice Oliver 's Order, with Notice of Entry, has long passed and rather than correct their failure to comply over the past five months, COUGHLIN has placed TULLY in the position of filing a further request for relief, and has responded thereto with a vacuous cross-motion.

Defendant moves this Court, under index No. 2005-18504 (Motion Sequence 002), for an Order granting partial summary judgment dismissing the complaint and discharging the mechanics liens. For the same reason stated in the reference to Motion Sequence 001 under this same index number herein above, that portions of the relief requested in this application regarding discharge of the mechanics liens filed herein is clearly decided by that part of this Order regarding Index No. 2005-11317 (Motion Sequence 002).

As to the portion of the relief requested herein regarding summary judgment, partial or otherwise, the Court finds replete throughout the papers submitted by both sides a litany of issues of fact that are clearly arguable by either party, requiring trial in order to render determination.

The Court's function on in deciding a motion for summary judgment is issue finding, not issue determination ( Sillman v. Twentieth Century Fox Film Corp., 3NY2d 395, 144 NE2d 387, 165 NYS2d 498). Summary judgment is a drastic remedy, and therefore should not be granted where there exists any doubt as to the existence of a triable issue (Rotuba Extruders v. Ceppos, 46 NY2d 223, 385 NE2d 1068, 413 NYS2d 141). When the existence of an issue of fact is even arguable or debatable, a motion for summary judgment should be denied (stone v. goodson, 8 NY2d 8, 167 NE2d 328, 200 NYS2d 627). It is the role of the Court to determine if bonafide issues of fact exist, not to resolve issues of credibility (Gaither v. Saga Corp., 203 AD2d 239, 609 NYS2d 654; Black [*4]v. Chittenden, 69 NY2d 665, 503 NE2d 1370, 511 NYS2d 833).

Plaintiff moves this Court, under Index No. 2005-18504 (Motion Sequence 003), for an Order disqualifying William Power Maloney, Esq. as Counsel for Defendant on the grounds that he has represented the individual Plaintiff in prior non-related proceedings, and will be called by Plaintiff as a witness at trial in this action.

Having made this claim, Counsel for the Plaintiffs goes on to admit that, in fact, Counsel Maloney was, in truth:

(1)In one situation, representing TULLY against COUGHLIN in an earlier dispute between them, which was settled, and since Counsel Maloney was the attorney for COUGHLIN's adversary, there is no reasonable manner by which COUGHLIN could have come to believe that Counsel Maloney was representing COUGHLIN; and

(2)in another instance, representing TULLY in a matter wherein COUGHLIN was a witness on TULLY's behalf, and Counsel Maloney discussed that case, between another party and TULLY, with COUGHLIN over lunch just prior to his testimony, obviously acting as TULLY's Counsel and furthering TULLY's interest in that litigation, which COUGHLIN was not a party to.

Then COUGHLIN's Counsel alleges that Counsel Maloney will be called as a witness in the within matter, and therefore should be disqualified.

Not one scintilla of evidence was offered to support the theory that COUGHLIN ever believed, through any tortured stretch of the imagination, that Counsel Maloney represented him in any manner, other than the unsupported allegation of COUGHLIN's understanding by COUGHLIN's Counsel, but not by COUGHLIN. As the Court stated in New York University v. Simon (130 Misc 2d 1022, 498 NYS2d 661), "...the dispositive factor is whether the prospective client has a reasonable expectation of confidentiality at the time disclosure was made". In this situation, since it was obvious to COUGHLIN that Counsel Maloney was TULLY' s attorney, as was speaking to him about his testimony on behalf of Tully, he could not have any expectations of confidentiality as his role was nothing more than that of a witness. Furthermore, had COUGHLIN disclosed to Counsel Maloney that he was not licensed as an architect, this could not be a confidential communication, since licensing is a public matter which is easily discernable by communication with the licensing agency, the State of New York, by ANYONE.

Plaintiff's Counsel's further claim that Counsel Maloney should be disqualified from representing TULLY because he will be called as a witness for COUGHLIN is equally specious, since nothing has been put forward alleging that the testimony of Counsel Maloney, should his being called as a witness pass the inevitable motion for protective order, would "...be prejudicial to his own client (Code of Professional Responsibility DR5-102; People v. Paperno, 54 NY2d294)...", Ocean-Clear, Inc. v. Continental Casualty

Co,. 94 AD2d 717, 462 NYS2d 251 (2nd Dept. 1983). In conclusion, the allegation that Counsel Maloney must be disqualified as attorney for TULLY is completely devoid of legal and factual efficacy.

For all the reasons stated herein above, it is, therefore,

[*5]ORDERED, that the application of Defendant, under Index No. 2005-18504 (Motion Sequence 001), for an Order, pursuant to Lien Law § 20, discharging the Notice of Mechanics Lien filed by the Plaintiff's in the Office of the Clerk of Suffolk County on April 22, 2005, against premises located at 1440 Scuttle Hole Road, Bridgehampton, Town of Southhampton, Suffolk County, New York (SCTM designation District 0900, Section 038.00, Block 001.00, Lot 008.002), and against SHAWN TULLY as the owner of the premises is hereby granted, without requirements of payments by any parties to any entities.

ORDERED, that the application of SHAWN TULLY, under Index No. 2005-11317 (Motion Sequence 002), for an Order cancelling the two Mechanics Liens filed by Lienor SCOT COUGHLIN and S.B. COUGHLIN, INC. (Collectively COUGHLIN), on April 22, 2005, because the Lienors failed to comply with the Order of Justice Robert Webster Oliver, Supreme Court, Suffolk County, dated September 30, 2005, and entered on October 6, 2005, directing service of itemized statements of the aforementioned liens, is hereby granted in all respects as to the two mechanics liens against the three parcels of property.

ORDERED, that the application of Defendant, under Index No. 2005-18504 (Motion Sequence 002), for an Order granting partial summary judgment dismissing the complaint and discharging the mechanics liens, is hereby denied as to summary judgment and granted as to discharge of the aforementioned mechanics lien.

ORDERED, that the application of Plaintiff, under Index No. 2005-18504 (Motion Sequence 003), for an Order disqualifying William Power maloney, Esq. As Counsel for Defendant on the grounds that he has represented the individual Plaintiff in prior non-related proceedings, and will be called by Plaintiff as a witness at trial in this action, is hereby denied in all respects.

Dated:Riverhead, New York

March 14, 2006

____________________________________

HON. JEFFREY ARLEN SPINNER, J.S.C.

TO: