150 Nassau Assoc. LLC v RC Dolner LLC

Annotate this Case

Download PDF

150 Nassau Assoc. LLC v RC Dolner LLC 2006 NY Slip Op 30683(U) February 17, 2006 Supreme Court, New York County Docket Number: 601879/04 Judge: Judith J. Gische Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: - NEW YORK JUDITH J. GISCHE, J.S.Cm COUNTY PART 1 0 /.--*E-- Index Number : 60187912004 150 NASSAU ASSOCIATES LLC. INDEX NO. vs MOTION DATE RC DOLNER LLC I?) I5l0,Ei MOTION SEQ. NO. Sequence Number : 001 MECHANICS LIEN - Lheck L @.k, .. - MOTION CAL. NO. ___ ".. ... . ,J motion to/for PAPEP$ NUMBERED Notice of Motion/ Order to Show CauseAnswering Affidavits - - Affidavits - Exhlbits ... Exhlblts Replying Affidavits 4 Cross-Motion: 0 Yes g W U o / Upon the foregoing papers, It is order d that this motlon (e) and cross-motion($) wlth the annexed decisfon/ordsr of even date. dsckled in accordan- LF ¬O 1 7 2uag Dated: J. S. C. Check one: FINAL DISPOSITION Check if appropriate: 0 DO NOT P& NON-FINAL DlSPOSlTIOY [* 2] SUPREME COURT OF THE STATE OF COUNTY OF NEW YORK: PART 70 NEWYORK __-I----_______-----___________________I------_---------- X Daci ion10 rder s Index No.: 601879/04 Seq. No.: 001 150 NASSAU ASSOCIATES LLC, Plaintiff/Counterclaim Defendant, -against- Present: Hon. Judith J. Gische J.S.C. RC DOLNER LLC, ~ - Defendant/Counte rclaim Plaintiff, KENSINGTON-NASSAU LLC, Additional Counterclaim Plaintiff, -against150 MEZZANINE LLC, et a/. Defendants. ..................................................... X Recitation, as required by CPLR 2219 [a], of the papers (these) motion(s): this Papers Nurnbe red Pltf/CC Deft motion [mechanics lien] w/FHS affirm in support, affirm in support (HS), exhs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Def/CC Pltf Dolner afid in support (AJF, Sr.) w/exhs . . . . . . . . . . . . . . . . . . . . . . . . . 2 PltflCC Def reply affirm in further support (FHS) w/HS affirm in further support, exhs 3 Upon the foregoing papers, the decision and order of the court is as follows: The underlying action is for, among other relief, damages arising from an alleged breach of contract, and the vacature of an amended mechanic s lien filed by defendant RC Dolner LLC against plaintiff. Before the court is plaintiffs motion for an order immediately vacating the lien in question. Page Iof 4 [* 3] Backnround Plaintiff 150 Nassau Associates LLC was the owner of the premises located at 150 Nassau Street in downtown Manhattan [ premises ] at the time defendant RC Dolner LLC [ Dolner ] did exterior and interior renovations to the premises. Ownership has since been transferred to 2 Spruce LLC, pursuant to a deed recorded February 26, 2003. 2 Spruce LLC is a named 3 party defendant. Hereinafter, these two entities are collectively referred to as the owners of the premises. As per the document entitled Release and Partial Waiver of Liens from RC Dolner LLC to Owner [I Nassau Associates LLC] Conditional Upon Payment, dated 50 April 27, 2004, the owner and Dolner agreed owner would pay the sum of $31,29571 5.66 for work, services, materials and/or equipment furnished in connection with the renovation of the premises, through April 23, 2004 [ release ]. This money was paid by the owner and accepted by Dolner. Thereafter, on June 9, 2004, Dolner filed a mechanic s lien in the amount of $2,239,547.80. The owners served a demand for a verified itemized statement dated June 17, 2004 and thereafter brought a Petition for an order pursuant to Lien Law 5 38, requiring Dolner to respond to that demand Nassau Associates LLC v. RC Ddner LLC, Supreme Court, New York Co., Index No. 110523/04). The presiding judge, Hon. Karen S. Smith ordered Dolner to respond, as per her order dated December 7, 2004, thereby granting the petition. Dolner complied with the order by serving an amended Verified Statement of Lien dated December 23,2004, showing that the amount due was in the reduced amount of $1,052,164.95. Dolner then brought a Petition to amend the June gthNotice of Mechanic s Lien (I/M/O RC Dolner LLC v. 2 Spruce Street LLC, Supreme Court, New Page2of 4 [* 4] York Co., Index No. 101392/05) and harmonize it with the December 23rd amended statement. The petition was granted by Hon. Kibbie F. Payne by decision and judgment filed May 23,2005. The amendment was nunc pro tunc. The owners presently argue that lien should be immediately vacated in its entirety because it asserts a monetary claim for the same time period covered by t h e I release. They argue further that the lien is for a far greater sum than they could conceivably owe, even assuming they owe Dolner any unpaid monies, and finally, they argue that Dolner is required to indemnify them against all liens asserted against them by sub-contractors. Dolner opposes the motion in all respects, first because it is premature (no discovery yet),' and on the merits (the owners owe them the money). Thus, Dolner argues that the lien is entirely proper and should not be vacated until there is a trial or other ultimate resolution of this case. Diacusslon It is significant that the court does not have before it a motion for summary judgment. Thus, semantics aside, plaintiff seeks to obtain immediate relief that is not discernibly different than its 6mcause of action (and others), without a trial. Although a court can void a lien on the ground of willful exaggeration [Pratt General Cmtractors v. Trappey, 177 AD2d 566 (2"dDept 1991)], this is commonly after a dispositive motion [See: Strongback Corp. v N.E.D, Carnbridqe Avenue Dev. Corp., AD3d-, 2006 WL 59750 (Iat 2006) (motion for summary judgment)] or trial dept. 'There is, in fact, a pending motion for discovery not yet submitted to the court (e.g. sequence number 002). Page3of 4 [* 5] [See: Goodman dlbla Keystone v. Del-Sa-Foods, Inc., 15 NY2d 191 (1965)l.This is because the allegedly aggrieved party asserting a Lien Law § 39 claim bears the burden of showing the exaggeration is intentional and deliberate [Pratt General Contractors, supra; Goodman v. Del-Sa-Foods Inc, supra],tantamount to a fabricated claim, not just an honest difference of opinion, or mere inaccuracy. E-J Elec Installation Co. v. Miller v. Raved, Inc., 51 AD2d 264 ( 1 ' dept. 1976)app dism 39 NY2d 898 (1976). All of the owners' claims are disputed by Dolner. Even accepting that the owners have bona fide indemnification claims, these claims remain to be tried (or for other final resolution), along with the all the other claims, counterclaims, and cross claims asserted by and between the parties in this action. The motion by 150 Nassau Associates LLC is therefore denied in all respects without prejudice to renewal upon adjudication of the 0 parties underlying disputes. ConcIu$lon \ The motion by 150 Nassau Associates LLC is he *2 +& # 4. espects, for y d$d, % I the reasons provided. Y .\ Any relief not expressly addressed herein has nonetheleskonsidered by the court and is denied. This shall constitute the Decision and Order of the Court. Dated: New York, New York February 17,2006 So ORDERED Page4of 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.