East Coast Elec., Inc. v 1200 Fifth Assoc., LLC

[*1] East Coast Elec., Inc. v 1200 Fifth Assoc., LLC 2009 NY Slip Op 51897(U) [24 Misc 3d 1246(A)] Decided on July 10, 2009 Supreme Court, New York County Edmead, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 10, 2009
Supreme Court, New York County

East Coast Electric, Inc., Plaintiff,

against

1200 Fifth Associates, LLC, HYPO REAL ESTATE CAPITAL CORPORATION, TOTAL SAFETY CONSULTING, LLC, REDLYN ELECTRIC CORP., BAY CRANE SERVICE, INC., PATTERSON-KELLEY CO., PARK AVENUE BUILDING AND ROOFING SUPPLIES, INC., KAMCO SUPPLY CORP., FULL MECHANICAL, INC., LE NOBLE LUMBER CO., INC., THE CHETRIT GROUP, LLC and ARCADE CONTRACTING & RESTORATION, INC., , Defendants.



104163/08

Carol Robinson Edmead, J.

In this action to foreclose on a Notice of Mechanic's Lien on real property located at 1200 Fifth Avenue, New York, New York, 10029 ("the Property"), plaintiff East Coast Electric, Inc. ("plaintiff") moves to reargue the prior motion by defendants 1200 Fifth Associates. LLC ("1200 Fifth"), Hypo Real Estate Capital Corporation and The Chetrit Group (collectively "defendants") for summary judgment and prior cross-motion by the plaintiff for (i) leave, pursuant to Lien Law §12-a(2), to amend its Lien Notice, nun pro tunc, to reflect the new tax lots created after 1200 Fifth's Declaration of Condominium was declared effective; (ii) leave to amend its complaint.

By Decision & Order dated March 11, 2009, the Court (1) granted defendants partial

summary judgment dismissing the complaint by finding that plaintiff's Notice of Mechanic's Lien ("Lien Notice") was invalid pursuant to Lien Law §9(7); (2) vacated, canceled and discharged of record plaintiff's Lien Notice pursuant to Lien Law §19; and (3) denied plaintiff's cross-motion in its entirety.

Plaintiff's Motion

Plaintiff argues that the central issue is whether plaintiff's Lien Notice substantially complied with the several provisions of the Lien Law thereby allowing the Court to issue an Order amending plaintiff's Lien Notice, nunc pro tunc, to reflect those lots of which defendant 1200 Fifth retains an interest. While the Court duly noted that plaintiff's Lien Notice listed the

correct owner of the subject premises, it incorrectly held plaintiff's Lien Notice was per se [*2]

invalid as a "blanket lien" merely because the Lien Notice was filed upon the superseding single

lot of the subject premises whereas it was substantially compliant in all other aspects of the Lien

Law notice provisions.

Plaintiff argues that it substantially complied with the notice provisions of the Lien Law in light of the liberal construction mandated by Lien Law §23 in that its Lien Notice (1) correctly identified and named 1200 Fifth as owner of the entire property, (2) provided the agreed upon price and value of labor and materials, (3) correctly identified where the work was performed and materials provided by correctly naming the street and number address of the properly subject to the lien, (4) was properly served upon the true owner 1200 Fifth, and (5) placed the true owner of all units and common elements on notice that plaintiff intended to place a lien on the entire property. The only ministerial defect on plaintiff's Lien Notice was the listing of the property's superseding lot a mere ten days after the effective date of the Declaration of Condominium, but at a time where 1200 Fifth remained the sole owner of all units and common elements.

Plaintiff maintains that the Court incorrectly determined that the failure to list the proper lots rendered plaintiff's Lien Notice per se invalid and failed to recognize that the Lien Notice was substantially compliant. Further, the caselaw cited by the Court are wholly inapposite to the facts present in the case at bar, in that in such cases, the lien notices contained multiple facial defects since they were filed upon superceding lot(s) months after the declaration of condominium had been filed and individual units had been sold." None of these cases invalidated a lien where the property address was correctly stated and the only irregularity was that the lienor used a superseding lot number on the lien notice when the project owner retained all units and common elements at the time of the filing of the lien notice.

As the Court noted, it is undisputed that 1200 Fifth was the sole owner of the Property at the time plaintiff filed its Lien Notice, and that 1200 Fifth consented to the work plaintiff performed at the Property, which served as the basis for the Lien Notice. Consistent with such findings, courts have routinely allowed amendments to substantially compliant lien notices to reference current lot numbers and exclude property no longer owned by the project owner.

Defendants' Opposition

Here, plaintiff seeks to improperly reargue once again the same issues previously decided. Therefore, leave to reargue should be denied in the sound discretion of this Court on this basis alone.

Further, even assuming reargument is granted, summary judgment to the defendants is still appropriate. Plaintiff's attempt to distinguish the cases upon which this Court relied, because they make mention of other defects immaterial to the analysis, is unavailing.

The First Department caselaw cited by the Court stand for the proposition that liens which fail to specify the individual units after a condominium filing, and seek to encumber the superceded lot, are not proper and must be vacated. Further, binding First Department caselaw do not permit a Court to breathe life into a vacated lien and allow it to be amended. And, none of cases cited by plaintiff in support of amending the Lien Notice are in the First Department.

Reply

Defendants' argument, and the holding of the Court in the cases cited and relied upon by

defendants, do not address facts existing in the instant action, where a notice of lien properly

sets forth the description of the property sufficient for identification, including its street and [*3]

number, as required by New York Lien Law §9(7). Here, the single lot identification, although superseded by new tax lots, did in fact identify the property which was the subject of the lien, which included the entire building, including all units and common elements.

Further, the First Department caselaw cited by the Court and defendants involve liens with multiple defects, prior good faith purchasers, and were invalidated under RPL § 339-1, none of which apply to the instant matter. None of the caselaw relied upon by the Court stand solely for the proposition that a lien filed against a superceding lot as opposed to individual condominium units, standing alone, renders the lien facially invalid but rather involve situations with inapposite facts and liens defective under both Lien Law. Indeed, in such cases, the lienor could not properly encumber the entire property and all units because units had been sold prior to the lien being filed, and here, no units had been sold and the entire property was, in fact, subject to the lien.

Analysis

A motion for leave to reargue under CPLR 2221, "is addressed to the sound discretion of the court and may be granted only upon a showing that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision'" (William P. Pahl Equipment Corp. v Kassis,182 AD2d 22 [1st Dept] lv. denied and dismissed 80 NY2d 1005, 592 NYS2d 665 [1992], rearg. denied 81 NY2d 782, 594 NYS2d 714 [1993]). Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided (Pro Brokerage v Home Ins. Co., 99 AD2d 971, 472 NYS2d 661) or to present arguments different from those originally asserted (Foley v Roche, 68 AD2d 558, 418 NYS2d 588)" (William P. Pahl Equipment Corp. v Kassis, supra ). On reargument the court's attention must be drawn to any controlling fact or applicable principle of law which was misconstrued or overlooked (see Macklowe v Browning School, 80 AD2d 790, 437 NYS2d 11

[1st Dept 1981]).

Given that plaintiff raises an issue as to whether the Court properly analyzed the caselaw to which it cited in its Decision and Order, the Court grants reargument.

It is uncontested that (1) that 1200 Fifth, for whom the work was performed, was the sole owner of all units and common elements at the time of plaintiff's filing of the Lien Notice, (2) that the Lien Notice correctly sets forth the street and number address of the property, (3) that plaintiff performed the work for which it has filed its Lien Notice and for which it seeks payment, and that the Lien Notice was properly served.

Upon reconsideration of the caselaw, the Court determines that Northeast Restoration Corp. v K & J Const. Co., L.P. (304 AD2d 306 [1st Dept 2003]), Atlas Tile and Marble Works, Inc. (191 AD2d 247 [1st Dept 1993]), and Advanced Alarm Technology, Inc. v Pavilion Assocs. (145 AD2d 582 [2d Dept 1988]) are not controlling. In each of these cases, a blanket lien setting forth a former superceded lot number was filed after the recording of a condominium declaration and after the individual condominium units were sold to third parties. Therefore, by failing to properly describe the specific units that the contractor sought to encumber and by attempting to encumber common elements without the unanimous consent of the individual unit owners, rendered the liens invalid. However here, it is uncontested that the defendants was the sole owner of all units and common elements at the time of plaintiff's filing of the Lien Notice and nothing in the record before the Court indicates that any of the units were ever sold. [*4]

It appears that the Lien Notice filed herein, under circumstances where the owner retained all the interests in the units and common elements at the time the Lien Notice was filed, is not rendered invalid simply because it fails to identify the specific, unsold units (see e.g., A.C. Green Elec. Contractors, Inc. v Fu, 240 AD2d 243, 658 NYS2d 602 [1st Dept 1997] [reversing order discharging the mechanic's lien where the Condominium developer retained ownership of an individual unit and the common elements at the time the liens were filed by plaintiff, and an issue was raised as to whether the individual owners were "alter egos" of the project owner, and, thus, not intended to be protected by the Condominium Law] citing United Brotherhood of Carpenters v Nyack, 182 AD2d 16, 586 NYS2d 665 [3d Dept 1992] [holding that mechanic's lien was erroneously discharged; contractor's mechanic's lien was found invalid as to the initial completed phase of the project but found valid as to the project owner's retained lands]). Since the Lien Notice substantially complied with the Lien Law in all other respects, upon reargument, the motion by defendants 1200 Fifth Associates. LLC ("1200 Fifth"), Hypo Real Estate Capital Corporation and The Chetrit Group for summary judgment dismissing plaintiff's Complaint, on the ground that the Lien Notice is invalid is denied. Further, upon reargument, plaintiff's motion for leave, pursuant to Lien Law §12-a(2), to amend its Lien Notice, nunc pro tunc,to reflect the new tax lots created after 1200 Fifth's Declaration of Condominium ("Declaration") was declared effective and leave to amend its Complaint, is granted.

Conclusion

Based on the foregoing, it is hereby

ORDERED that the motion by plaintiff East Coast Electric, Inc. for leave to reargue the prior motion for summary judgment by defendants 1200 Fifth Associates. LLC ("1200 Fifth"), Hypo Real Estate Capital Corporation and The Chetrit Group and the prior cross-motion by the plaintiff for (i) leave, pursuant to Lien Law §12-a(2), to amend its Lien Notice, nun pro tunc, to reflect the new tax lots created after 1200 Fifth's Declaration of Condominium was declared effective and (ii) leave to amend its complaint, and upon reargument, denying defendants' motion in its entirety and granting plaintiff's cross-motion in its entirety, is granted; and it is further

ORDERED that this action shall be reinstated and plaintiff shall serve its Amended Complaint pursuant to the CPLR; and it is further

ORDERED that the parties shall appear for a Preliminary Conference on September 28, 2009, 2:15 p.m.; and it is further

ORDERED that the plaintiff shall serve a copy of this order with notice of entry upon all parties within 20 days of entry.

This constitutes the decision and order of the Court.

Dated: July 10, 2009___________________________________

Hon. Carol Robinson Edmead, J.S.C.