Titanium Constr. Servs., Inc. v Nicholas Indus. & Constr. Servs., Inc.

Annotate this Case

Download PDF

Titanium Constr. Servs., Inc. v Nicholas Indus. & Constr. Servs., Inc. 2017 NY Slip Op 30659(U) April 5, 2017 Supreme Court, Kings County Docket Number: 504961/16 Judge: Debra Silber Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: KINGS COUNTY CLERK 04/06/2017 03:23 PM 1] INDEX NO. 504961/2016 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 04/06/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: PART 9 -----------------------------------------------------------------------------.>< TITANIUM CONSTRUCTION SERVICES, INC. DECISION/ORDER Index No. 504961/16 Mot. Seq. No. 2 Date Submitted: 3/16/17 Plaintiff, -againstNICHOLAS INDUSTRIES & CONSTRUCTION SERVICES, INC. and CONGRESS STREET DEVELOPMENT, LLC, Defendants. ----------------------------------------------------------------------------.>< NICHOLAS INDUSTRIES & CONSTRUCTION SERVICES, INC. Third Party Plaintiff, -againstDARWIN NATIONAL ASSURANCE COMPANY, Third Party Defendant. ----------------------------------------------------------------------------.>< HON. DEBRA SILBER, J.S.C.: Recitation, as required by CPLR §2219(a), of the papers considered in the review of defendant Nicholas Industries & Construction Services, lnc.'s motion to reargue. Papers Numbered Notice of Moti on, Affirmation and Affidavits Annexed ..................... . 1-11 Affirmation in Opposition .......... .......... ... .......................................... . 12 13 Reply ............... ......................................... .................................... . 1 of 4 [*FILED: KINGS COUNTY CLERK 04/06/2017 03:23 PM 2] NYSCEF DOC. NO. 63 INDEX NO. 504961/2016 RECEIVED NYSCEF: 04/06/2017 Upon the foregoing cited papers, the Decision/Order on this Motion is as follows: Defendant Nicholas Industries and Construction Services, Inc. ("Nicholas") moves for leave to reargue the court's decision of September 28, 2016 1 (Mot. Seq . #1) which granted plaintiff's motion for summary judgment in its action to cancel and discharge Nicholas' mechanics lien and to dismiss its counterclaim, and upon reargument, to instead sever movant's counterclaim for "foreclosure of the mechanic's lien ." Plaintiff opposes the motion , as does third party defendant Darwin National Assurance Company (now known as Allied World Specialty Insurance Company). The court grants reargument, and upon reargument , adheres to its original decision . Plaintiff commenced this action on April 1, 2016, seeking to cancel and discharge a mechanic's lien filed by defendant Nicholas on December 19, 2014. Defendant Nicholas answered the complaint and interposed a counterclaim to foreclose on its lien, dated May 9, 2016. The sole counterclaim was denoted by Nicholas as a "Counterclaim to Foreclose of the Mechanic's Lien ." Plaintiff replied to the counterclaim. Subsequently, Nicholas brought a third-party summons and complaint against third party defendant Darwin National Assurance Company, the company that bonded the lien. By Notice of Motion dated June 14, 2016, plaintiff moved for summary judgment on all causes of action in its complaint and for an order dismissing Nicholas' counterclaim. 1 Plaintiff was directed to settle an order on notice, which was signed on October 20, 2016 and entered on November 1, 2016. -22 of 4 [*FILED: KINGS COUNTY CLERK 04/06/2017 03:23 PM 3] NYSCEF DOC. NO. 63 INDEX NO. 504961/2016 RECEIVED NYSCEF: 04/06/2017 The court granted plaintiff's motion on September 28, 2016. The order granted plaintiff's motion in its entirety, including the request for an order dismissing Nicholas' counterclaim to foreclose the mechanic's lien. The decision notes that no action was taken to foreclose the lien in a timely manner. Plaintiff was directed to settle an order on notice and directed that the third party action was severed . That was all that needed to be said. However, it is also now stated that the counterclaim was not only untimely, if it is ever possible to foreclose on a mechanic's lien by way of counterclaim , but it also lacked the specificity required by Lien Law§ 17. It doesn't identify the mechanic's lien or the real property. It was not timely followed by the fil ing of a notice of pendency. It was not extended for another year, as defendant erroneously claims, and it was not filed against a single family home as defendant also erroneously claims. Nicholas' sole contention in the instant motion is that plaintiff never moved for summary judgment as to defendant Nicholas' counterclaim. This is simply false. Nicholas had one counterclaim, 'To Foreclose of the Mechanic's Lien." While the movant's sole counterclaim does make reference to a "breach of contract," that is the dispute that resulted in the lien , and there is no separate counterclaim for "breach of contract. " Plaintiff's motion specifically asked for summary judgment and an order dismissing the sole counterclaim which sought, albeit untimely, to foreclose the mechanic's lien . Plaintiff's memorandum in support of its summary judgment motion specifically argued that plaintiff was entitled to judgment, as a matter of law, vacating, cancelling and discharging the mechanic's lien, canceling the bond and discharging the surety, and that furthermore, defendant's sole counterclaim to foreclose upon the mechanic's lien failed as a matter of law. It is further noted that the court did not misapprehend any law or fact. CPLR § -33 of 4 [*FILED: KINGS COUNTY CLERK 04/06/2017 03:23 PM 4] NYSCEF DOC. NO. 63 INDEX NO. 504961/2016 RECEIVED NYSCEF: 04/06/2017 2221 . While plaintiff clearly moved to dismiss movant's sole counterclaim , movant's opposition to the plaintiffs summary judgment motion failed to oppose that request for relief. Now, Nicholas claims the court erred in granting it. That is simply not the case. This constitutes the decision and order of the court. Dated: Brooklyn , New York April 5, 2017 Hon. Debra Silber, J.S.C. Hon. Debra Silber Justice Supreme Court -44 of 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.