Matter of Windermere Holdings, LLC (Murray Eng'g, P.C.)

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Matter of Windermere Holdings, LLC (Murray Eng'g, P.C.) 2012 NY Slip Op 31018(U) March 30, 2012 Supreme Court, New York County Docket Number: 104351/11 Judge: Paul Wooten 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. NNED ON41512012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY HON. PAUL WOOTEN PRESENT: PART 7 Justice - m ,I, , , . , . .~ In the Matter of the Application of WINDERMERE HOLDINGS, LLC, WIND ERMERE PROPERTIES, LLC Petit ione rs, Index No.: IO4351111 For an Order Discharging the Mechanic's Lien filed by Motiop Seq.: 003 MURRAY ENGINEERING, P.C., Respondent. kw, APk C\/J 2012 Premisga: 400-406 West 57"' Street New York, New York QJQCk: 1066; 32 I ~ L W( i;M. >I' f J l l l ) r d (Y ~ , k l < ~ $(YFT iCE 'S The following papers numbered Ito 4 were read on respondents's motion to reargue pursuant to CPLR 2221 (d). PAPERS NUMBERED Notlce of Motion/ Order to Show Cause -Affidavits Answerlng Affidavits - Exhlblts ... - Exhibits (Memo) Replying Affidavits (Reply Memo) Cross-Motion: 1 I Yes No Before the Court is a motion by resppndent Murray Engineering, P.C. (Murray), pursuant to CPLR 2221 (d), for leave to reargue an order of this Court dated September 27, 201 1 and entered on October 5, 201 1, in which this Court granted petitioner Windermere Holdings, LLC's (Holdings) motion to vacate and cancel a notice of mechanic's lien filed by Murray against Holdings and also denied t h e portion of Murray's motion seeking to amend the lien nunc pro tunc to list Windermere Properties, LLC (Properties) as the owner of the premises (motion sequences 001 and 002, which were consolidated for purposes of dispoqition). Upon reargument, Murray seeks an order denying Holdings and Properties' petition to vacate Murray's mechanic's lien, directing the Clerk to reinstate the lien nunc pro tunc if alteady vacated, granting Murray's motion to amend the mechanic's lien nunc pro tunc, and granting Page 1 af 4 ' [* 2] Murray's motion for attorneys' fees. Holdings and Properties are in opposition to Murray's . . applicatjon. . .. . . , . .. , . .. A motion for reargument is addressed to the sound discretion of the Court, and is designed to give a party a chance to convince the Court that relevant facts or law were overlooked or misapprehended (see CPLR 5 2221[d][2]; Foley v Roche, 68 AD2d 558, 567 [Ist Dept 19791). The Court finds that respondent has demonstrated that the Court, in its order, dated September 27, 201 1 and entered on October 5, 201 1 overlooked or misapprehended certain matters of fact or law which would have changed the determination of the prior motion . . (see CPLR 2221 [d][2]). .- On or'about May 13, 2002, Holdings registered in New York State as a Foreign Limited Liability Company, establtShed iri Jeffersm County, Delawafe (Notic'e df Motion, exhibit 2). On or about December 17, 2008, Properties was created as a Limited Liability Company in the State of New York (d.). On or about May 20, 2009, TOA Construction Inc., Yuk Nam Kim and Ma&kp Yamagata sold the Windermere building located at 400-406 West 57"' Street (Building) 00. Properties for $13,000,OOQ Thereafter, Murray avers'thhat Properties allegedly retainid Holdings to manage and maintain the building. Both Holdings and Properties failed to produce a i y evidence of the management agreement betwedn Properties and Holdings, and Holdings has not billed or collected any funds for its management or maintenance services pursuant to its agreement with Properties (Petitioner's Discovery Response, Respondents Supplemental Pleading, dated June 15, 201 1, p.1-3 and Petitioner's response dated June 27, 201 1, p.5 7 2 ) . The Court record indicates that Mark Tress (Tress) is the principal of Holdings with offices at 419 Cedar Bridge Avenue, Suite 104 Lakewood, New Jersey. fress is 21150the principal of Properties with offices at the same address. Tress, as well a$ both Holdings and Properties also share the same telephone number and litigation attorney. Moreover, the record Page 2 of 4 [* 3] indicates that even after the mechanic's lien was filed, respondent, the New York City Department of Buildings and others, addressed correspondence t9 HQldingz w r m r n i n g the. ownership of the Building. In light of these circumstances, the Court holds that the lien merely misdescribed, not misidentified, the owner, and thus the lien is not jurisdictionally defective (see Lien Law $ 9[7]; see also PM Contr. Co. v 32 AA Assoc., 4 AD3d 198 [I Dept 20041; Gates & Co. v National st Fair- & Exposition Assii., 225 NY 142 [ 19191; Peachy v First 97-101 Reade St. Assoc., 180' AD2d 474 [Ist 19921). Moreover, case law has held that the requirement of Lien Law $ 9(2) that the notice of lien state the name of the owner of the real property, "must be construed liberally to secure the beneficial interests and purposes [of the Lien Law]. A substantial compliance . . . [is] sufficient for the validity of a lien" (Lien Law 5 23; see also PM C o n k Co., 4 AD3d at 199; Pqachy, 180 AD2d at 475; Gates & Co , 225 NY at 155). While Murray apparently neglected to update the title search, such neglect caused no apparent prejudice to any existing lienors, mortgages or good faith purchasers (see Lien Law 5 12-a[2]), therefore this Court finds, as did the Court in PM Contr. Co. (4 AD3d 198), that a rejpction of the lien and dismissal of the action is not warranted (see PM Corifr. Co., 4 AD3d at 199-200 [Ist Dept 20041). Accordipgly, Murray can amend the mechanic's lien nunc pro tunc to name Windermere Properties, LLC as the owner of the Building (see Lien Law 9 12-a[2]). For the foregoing reasons, Murray's motion to reargue is granted and upon reargument, this Court modifies its previous order dated September 27, 201 1 and entered October 5, 201 1 to the extent that the mechanic's lien, which was previously vacatad, is hereby restored and Murray's motion to amend the mechanic's lien nunc pro tunc to name Windermere Properties, LLC as the owner of the Building is granted, but otherwise affirms its previous determination Page 3 of 4 _ _ [* 4] Accordingly, it is ORDERED that Murray Engineering, P.C.'s mqtim to r.eq.rgue,.recn'hsidar. a!X...modify . ___ .. the order of this Court dated September 27, 201 I and entered October 5, 201 I is granted; and it is further, ORDERED that petitioners Windermere Holdings, LLC and Windermere Properties, LLC's motion to vacate Murray Engineering, P.C.'s mechanic's lien is denied; and it is further, ORDERED that Murray Engineering, P.C.'s motion to amend its mechanic's lien nunc pro tunc to name Windermere Properties, LLC as the owner of the Windermere building located a,t 400-406 West 57'h Street is granted; and it is further, . .. . . .. . ORDERED that Murray Engineering, P.C. shall serve a copy of this order with eotics'of entry upon all parties and upon the Clerk of tHe Court, Nho is directkql to reinstate Murray Engineering, P C's mechanic's lien, which was previously vacated, nunc pro tunc. This constitutes the Dated: 3 -E Check one: FINAL DlSPQSlTlON Check if qppropriafb: : L1 NON-FINAL DI 1-1DO NOT PQdt Page 4 of 4 REFERENCE n ..

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