Matter of Martinez v Zack's Rubbish Removal LLC

[*1] Matter of Martinez v Zack's Rubbish Removal LLC 2017 NY Slip Op 50913(U) Decided on July 19, 2017 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2017
Supreme Court, Kings County

In the Matter of the application of Miguel Martinez, Petitioner, For an Order requiring the production of an itemized statement of a Certain Notice of Lien as prescribed by Lien Law § 38,

against

Zack's Rubbish Removal LLC, Respondent.



510561/17



Attorney for Petitioner:

NICHOLAS M. MOCCIA

Law Office of Nicholas M. Moccia, P.C.

98 Beach Street, 2nd Floor, Staten Island, NY 10304

718-701-5772
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the petition of the petitioner Miguel Martinez (hereinafter Martinez) filed on May 26, 2017 under motion sequence number one, for an order pursuant to Lien Law § 38 directing the respondent Zack's Rubbish Removal (hereinafter Zack's) to furnish a specific itemized statement of a certain mechanic's line.

- Notice of Petition

Verified Petition

- Exhibits A-C

BACKGROUND

On May 26, 20107, petitioner Martinez commenced the instant special proceeding pursuant to Lien Law § 38 to compel the respondent to furnish a specific itemized statement of certain mechanic's lien. The verified petition alleges the following salient facts. On or about February 6, 2017, Zack's filed a notice of mechanic's lien against a premises known as 1072 East 2nd Street, Brooklyn, New York 11230 (hereinafter the premises). Martinez never hired Zack's to perform any work to the premises or elsewhere. On May 5, 2017 Martinez filed a mechanic's lien bond in the sum of $42,900.00 with the Kings County Clerk, Bond Number K0954669. On March 6, 2017, Martinez served a demand upon Zack's and Construction Consultants, LLC via regular mail and certified mail return receipt requested demanding that Zack's furnish a statement within five days after receipt of the demands. Zack's has not responded nor opposed the instant application.

LAW AND APPLICATION

New York Lien Law § 38 provides the following:

A lienor who has filed a notice of lien shall, on demand in writing, deliver to the owner or contractor making such demand a statement in writing which shall set forth the items of labor and/or material and the value thereof which make up the amount for which he claims a lien, and which shall also set forth the terms of the contract under which such items were furnished. The statement shall be verified by the lienor or his agent in the form required for the verification of notices in section nine of this chapter. If the lienor shall fail to comply with such a demand within five days after the same shall have been made by the owner or contractor, or if the lienor delivers an insufficient statement, the person aggrieved may petition the supreme court of this state or any justice thereof, or the county court of the county where the premises are situated, or the county judge of such county for an order directing the lienor within a time specified in the order to deliver to the petitioner the statement required by this section.

The statute further provides that a petition may be brought on two days notice. A Court has discretion regarding whether to cancel a lien when there is an untimely response to a demand for an itemized and verified statement of lien (J. Sackaris & Sons, Inc. v. Terra Firma Const. Mgmt. & Gen. Contracting, LLC, 14 AD3d 538, 541 [2d Dept 2005]).

In the instant matter, the petitioner submits, among other things, a verified petition, notice of demand for itemization and affidavit of service of the demand in support of the application. The complaint is verified by Martinez and therefore may serve as an affidavit (see CPLR 105[u]). The petition supports the relief requested. Martinez alleged that no contract existed between the parties and that a lien was filed on the premises (see Associated Bldg. Services, Inc. v. Pentecostal Faith Church, 112 AD3d 1130 [3d Dept 2013]). Further, Martinez properly demanded an itemization from Zack's pursuant to Lien Law 38. The affidavit of service establish that Martinez properly and timely served the demand.

Accordingly, the itemized statement shall be served within ten days after service of a copy of the order to be entered hereon. Furthermore, the liens shall be cancelled unless the lienor shall serve upon the owners a properly itemized statement as indicated herein See, Application of Pinckney, 13 AD2d 806 (2nd Dept 1961).

The foregoing constitutes the decision and order of this Court.

Dated: July 19, 2017

Hon. Francois A. Rivera

J.S.C.