B & B Constr., Inc. v Prestige Plumbing & Heating, Inc.

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B & B Constr., Inc. v Prestige Plumbing & Heating, Inc. 2012 NY Slip Op 32003(U) July 25, 2012 Sup Ct, NY County Docket Number: 100410/12 Judge: Michael D. Stallman 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 NEW YORK COUNTY PRESENT: Hon. MICHAEL D. STALLMAN PART 21 Jostlce B & B CONSTRUCTION, INC., INDEX NO. 10041Q112 MOTION DATE Petitioner, 2/2/12 MOTION SEQ. NO. -v- PRESTIGE PLUMBING AND HEATING, INC., 001 FILED Respondent. JUL 3 12012 The followlng papers, numbered Ito further ltemlzed statement Order to Show Cause- 9 were read on thls petltlon to dis harget mechanlc s Hen and to compel a NEW Y O d w g ~ C,ERKS OFFICE y Affldavlt - Verlfled Petltlon-E -F; fflrmatlon_) No(s). 1-3; 4 Exhibit 111No(s). 5; 6: 7 Verlfled Answer; Afflrmatlon In Opposltlon; Affldavlt In Opposltlon- IN O W . _8 1No@). 9 Reply Afflrmatlon Supplemental Affirmatlon- Exhlblt 2 Upon the foregoing papers, it is ADJUDGED that this petition to vacate a mechanic s lien filed by respondentand to compel a further itemizedstatement of lien is denied, and the proceeding is dismissed. Petitioner is a general contractor allegedly hired by Devonshire Associates, LLC (Devonshire) to perform work on certain units in a condominiumapartment building located at 28 East lO Street, NewYork, New York. Petitioner claims that it hired respondent,a plumbing subcontractor, to perform plumbing work on certain units at the building. On or about December 21,201I , respondent filed a notice of mechanic s lien in the amount of $1,362,390.50 against condominium units purportedly 1 owned by Devonshire, named in the notice as units IG, 12A, 12C, 12G, 3A, 5G, 7C, 8K, PHI 2H, PHA, PHC, PHG, PHH with corresponding block and lot numbers. (Verified Petition, Ex A.) On or about December 30,201Irespondent , furnished petitioner with an itemizedstatement o lien dated December 28, f 201Iwhich four exhibits attached. (Verified Petition, Ex F.) Respondent , f thereafter executed a Partial Release o Mechanic s Lien dated JanuarJ I (Continued.. . ) Page 1 of 5 [* 2] c B&B Constr., Inc. v Prestige Plumbing & Heating, Inc., Index No. 100410/12 2012, with respectto Units 3A, 5G, and I which was apparently filed with the IG, Clerk of New York County on January I O , 2012. (Verified Petition, Ex C.) Petitioner seeks to discharge respondent s lien on the ground that respondent never performed any work or furnished any materials to the units t named in the notice of mechanic s lien, except for Unit PHI2H. To support Is contention, petitioner relies upon respondent s itemized statement, which petitioner claims does not contain a single purchase order, change order, or other document pertaining to work allegedly performed all the units named in the lien except for Unit PH12H. As to that unit, petitioner asserts that only $4,290 is owed to respondent for work on Unit PHI2H. Therefore, petitioner seeks a moneyjudgment and reasonable attorneys fees against respondenton the ground that respondent willfully exaggerated Its lien. If discharge of the entire lien were not granted, petitionerseeks, in the alternative, a discharge of the lien as against all units except for Unit PHl2H, and a reduction of the amount of the lien to $4290. Lastly, petitioner wants the Court to compel respondentto provide petitionerwithan adequate itemized statement. The branch of the petitionto discharge the lien pursuant to Lien Law 5 I 9 I denied. s Lien Law 5 19(6) provides, with respect to a mechanic s lien for a private improvement, that a court may summarily discharge of record the alleged lien when it appears from the face of the notice of lien that the claimant has no valid lien by reason of the character of the labor or materials furnished and for which a lien I claimed, s or where for any other reason the notice of lien is invalid by reason of failure to comply with the provisions of section nine of thls article,or where it appears from the public records that such notice has not been filed in accordancewith the provisions of section ten of this article. (Construction for Commerce, lnc. v 7325 48th St., LLC, 90 AD3d 975, 975-976 [2d Dept 2011].) It is well settled that a court has no inherent power to vacate or (Continued,. . ) Page 2 of 5 [* 3] 8 B&B Constr., h c . v Prestige Plumbing & Heating, Inc., Index No. IO0410112 discharge a notice of lien except as authorized by Lien Law 5 19 (6)? (Matter oflowe, 4AD3d 476,476 [2d Dept 20041.) [I]n the absence of a defect upon the face of the notice of the lien, any dispute regardingthevalidity of the lien must await trial thereof by foreclosure. (Bryan s Quality Plus, LLC v Dorime, 80 AD3d 639, 641 [2d Dept 20111 [citation omitted]; Pontos Renovation v Kifano Arms Corp., 204 AD2d 87 [ IDept 19941; Matter o f Schiavone Consfr. Co. (Fischer& PorterCo.), 181AD2d 580,581 [Ist Dept 19921.) Petitioner essentially argues that the itemized statement, which is extrinsic to the notice of mechanic s lien, establishesthat respondentdid not performwork or furnish materials to the units named in the lien (exceptfor Unit PH12H). Petitioner also argues that the lien is defective on its face because I Units I G, 3A, and 5G were not owned by Petitioner B&B[sic] at the time the Mechanic s Lien was filed. (Lasser ReplyAffirm. 7 8.) However,such factual disputes must await trial of the foreclosure action. (SeeSlazerEnfer. Owner, LLC v Gotham Greenwich Const. Co., LLC, 50 AD3d 341 [Ist 20081 Dept [disputes concerningwhether the insuranceallegedly procured by respondent I a lienable item, and whether other items constituting the lien have been paid, s must await trial of the foreclosure action].) The fact that respondent filed a PartialReleaseof Mechanic s Lien at to Units I G, 3A, and 5G, after petitioner I informedrespondentthat Devonshiredid not own Units I I G , 3 4 and 5G, does not render the notice defective on its face. Inthis application to discharge the lien, petitioner is not entitled to either a reduction in the amount of the lien nor money damages and attorneys fees due to respondent s alleged willful exaggeration of the lien. Although Lien Law 8 39 provides that a willfully exaggerated lien is void, the issue of willful or fraudulent exaggerationis one that also ordinarily must be determinedat the trial of the foreclosure action. (Aaron v GreatBay Conk,290 AD2d 326 [Ist Dept 20021; see Me/-Sfu Constr. Corp. vMelwoodConsfr. Corp., I 0 1AD2d 809,810 [2d Dept 19841[claim of willful exaggeration based upon sections 39 and 39-aof the Lien Law and may only be interposed in an action or proceeding to foreclose a mechanic s lien].) In sum, petitioner has not demonstrated a valid ground to discharge (Continued. . . ) Petitioner most likely meant to refer Devonshire. Page 3 of 5 [* 4] B&B Constr., lnc. v Prestige Plumbing & Heating, lnc., Index No. 100410/12 summarily respondent s lien pursuant to Lien Law § I 9 (6), even if petitioner were ultimately to prevail either in any action to foreclose on the lien or on any counterclaim for willful exaggerationof the lien in that foreclosure action. Lien Law § 19 contains no provision which authorizes the court to vacate or discharge a mechanic s lien based upon the interest of justice. (Coppo/aGen. Conk C o p v Noble House Consfr. of N.Y., 224 AD2d 856,857 [3d Dept 19961.) The branch of the petitionseeking to compel respondent to provide an adequate itemizedstatement is denied. Respondentclaims that the itemized statement delivered to petitionersets forth the items of labor and/or material and the value thereof which make up the amount for which respondentclaims a lien. As petitioner points out, the processedand unprocessedchange orders refer to work that does not, on its face, appear to be done the units named In the lien. For example, change order # 186 is to Supply Labor and MaterialTo: Install Hot and Cold Riser Valves Of Each Riserfor Apartment 9AB. (Verified f Petition, Ex F [Itemized Statement, Ex C].) Apartment 9AB is not one of the units named in the lien. Respondentapparentlytakesthe position thatwork ostensibty perFomed on some units is lienable against other units owned Devonshire. (SeeCemele Suppl. Affirm. 7 I O ; PietracatellaAff. 7 9 [ all units are directly improved by Prestige s numerous installations of shut-off valves and check valves. ].) Petitioner counters that such a position runs contrary to Real Property Law 5 339-/(2), the extent that unit owners did not consent to the labor performed to or materials furnished. These issues must await trial of the foreclosure action. (S/azer ¬nter.Owner, LLC, 50 AD3d 341; Care Sys. ~Laramee, AD2d 155 770,771 [3d Dept 19891 [critical issue of whether defendant requested or consented to the performance of the extras as alleged by plaintiff must be determined at trial].) Petitioner contends that the itemized statement contains an inconsistency. According to petitioner, change orders # 212,242,252,255, and 259 were listed as not completed on a continuationsheet in ExhibitA to the itemizedstatement, but these change orders were alsosubmitted as Exhibit C, which respondentswas for additional and extra work performedat the request of petitioner, for which petitioner refused for failed to fully process change orders. (Continued. . ) . Page4of 5 [* 5] B&B Consfr., Inc. v Prestige Phmblng & Heating, lnc., Index No. 100410/12 Because petitioner s objections to the itemized statement are not in the nature of the sufficiency of the description of the items of labor andor material furnished, or theirvalue, the Court does not find that respondent delivered an insufficient itemized statement to petitioner. The issue of whether or not respondent performedthe work in the change orders forwhich respondent claimed payment is not an issue which goes to the sufficiency of the detail of the itemizedstatement Therefore, the branch of the petitionseeking to compel respondent to provide an adequate itemized statement is denied. L I.Check one: ................................................................ 2. Check If approprlate:............................ CASE DISPOSED PETITION I S 0 GRANTED DENIED 3. Check If appropriate:................................................ SETTLEORDER L ,J.S.C. CT] NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER OTHER 0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE Page5 of 5

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