Reyes v Tung Ling Lo

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Reyes v Tung Ling Lo 2013 NY Slip Op 30528(U) March 13, 2013 Supreme Court, Suffolk County Docket Number: 07-25149 Judge: Hector D. LaSalle 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] INDEX NO. CAL. No. 07-25 149 12-00861CO SUPREME COURT - STATE OF NEW YORK I.A.S. PART 48 - SUFFOLK COUNTY PRESENT: I-Ton. MOTION DATE 9- 18- 12 ADJ. DATE 11-27-12 Mot. Seq. # 004 - MG HECTOR D. LaSALLE Justice of the Supreme Court KEEGAN & KEEGAN, ROSS & ROS NER, L.L.P. Attorneys for Plaintiff 3 15 Westphalia Avenue, P.O. Box I46 Mattituck, New York 1 1952-0146 A1,LAN IIEYES, Plaintiff, - against - EDMUND I lING LING LO dk/a EDMUND LO, LARRY J. GUFFEY, as Trustee of 94 Narod Boulevard Trust, CATHY SILVERSTEIN and JOHN DOE and JANE DOE Tenants or Persons in possession of 94 Narod Boulevard, Water Mill, New Yolk, Defendants. ............................................................... : LELAND L. GREENE, ESQ. Attorney for Defendant Lo 1565 Franklin Avenue, Second Floor Mineola, New York 1 1501 : X Upon the following papers numbered 1 to 3 read on this motion for partial summary iudgment : Notice of Wlotioni 0 Order 10 Show Cause and supporting papers 1 - 14 ; Notice of Cross Motion and supporting papers -; Answering Affidavits ; b etmet and wpporting papers 1 5 - 27 ; Replying Affidavits and supporting papers 28 - 30 ; Other - - ( )it is, ORDERED that the motion by defendant Edmund Tung Ling Lo for an order granting suinniary judgment in his favor on the first and third causes of action is granted; and it is ORDERED that, upon service by defendant Edmund Tung Ling Lo of a copy of this order with notice of its entry on the Clerk of Suffolk County, together with proof of service of a copy of this order on plaintiff, the Clerk shall release to defendant Edmund Tung Ling Lo the funds he deposited in connection \\it11 this action, as well as any interest earned on such funds. Plaintiff Allan Iieyes, an interior decorator and part owner of Decorations of Palm Beach, a decorating storc in West Palm Beach, Florida, allegedly was hired by defendant Edmund Tung Ling Lo in 2004 to assist i n decorating Lo s residence in Water Mill, New York. Lo, who also is an interior decorator [* 2] Reyes v Lo Itldcx NO. 07-25 149 Page No. 2 and formerly owned a decorating store in Palm Beach, allegedly was preparing the Water Mill residence, kno\vn as 94 Narod Boulevard, for resale by re-upholstering or restoring furniture that he already owned and by adding new furniture, curtains, fixtures and decorative accessories. Prior to the job in Water Mill, plaintiff allegedly performed decorating work for Lo at his apartments in New York City and Palm Ekach, as well as at his residence in Rridgehampton. In August 2006, after Lo allegedly failed to pay a balance of $98.61 0 o m d for the decorating services that were provided, plaintiff filed a mechanic s lien against the Water Mill property. In March 2007, title to the Water Mill property was transferred from Lo to defendant Larry Guffe:y by bargain and sale deed with covenants against grantor s acts. Subslequently,in August 2007, plaintiff commenced this action against Lo, Guffey and defendant Catherine Silverstein, who previously had filed a mechanic s lien against the Water Mill property. By order dated .Idy 3 1, 2008, this Court (Cohalan, J.) denied a motion by Lo pursuant to CPLR 32 1 1 for an order dismissing the complaint against him and granted, in part, a cross motion by plaintiff for leave to serve an amended co,mplaint. The Court also directed that approximately $107,000 of the proceeds from the sale of the Water Mill property be held in the escrow account of Lo s attorney. Thereaftcr, plaintiff served a second amended complaint containing three causes of action. The first cause of action seeks to foreclose the mechanic s lien plaintiff filed in 2006, and the second cause of action seeks damages from Lo for breach of contract. The third cause of action seeks a declaration that funds obtained by Lo from the sale of the Water Mill property constitute trust assets held for the benefit of plaintiff and all other persons, if any there be, who are mechanics or material men who have furnished labor or matcrials i n connection with the work of the improvement of said single family residence at the premises, and that Lo is the trustee of such funds. In 2009, the parties entered into an agreement that the money held in cscrow be deposited with the Suffolk County Clerk and that the action be discontinued against all defendants except Lo. On July 15,2009, Justice Cohalan issued an order discontinuing the case against all defendants except Lo, and providing that the $107,000 in sale proceeds held in escrow be deposited with the County Treasurer and released only pursuant to a subsequent court order. Lo now moves for an order granting summary judgment in his favor on the first and third causes of action, arguing, in part, that plaintiff did not furnish labor or materials for the improvement of real property cntitling him under Lien Law Q 3 to a mechanic s lien against the Water Mill property, and that the issuc of trust assets became moot when proceeds from the sale were deposited with the Clerk of the Court. Lo firtlier asserts the money deposited with the Clerk of the Court should be released on the ground that plaintiffwas not entitled to a mechanic s lien. Lo s submissions in support ofthe motion include copies of the pleadings. the notice of mechanic s lien filed by plaintiff, and excerpts of plaintiffs deposition tcstimony. Lo also submits an affidavit of plaintiff submitted to the Court in 2007 in opposition to LO S prior motion f or dismissal of the complaint. Plaintiff opposes the motion, asserting that he properly filed the mechanic s lien against the Water M i l l property after Lo failed to pay the balance he owed for furniture, furnishings, fixtures and interior decorating services. Plaintiff also contends that as Lo did not appeal the July 2008 order issued by Justice Cohalan, nhich states that the interior decoration of a home may constitute improvement and/or services that ivould be lienable under the Lien Law, he is precluded from arguing plaintiff was not entitled to a mechanic s lien. I n opposition to the motion, plaintiff submits, among other things, a copy of a computer [* 3] Reyes v Lo Index No. 0 7-25 149 Page No. 3 print-out listing purchases allegedly made and payments allegedly received in connection with Lo s Water Mill property. a copy of the 2007 deed transferring title to the subject property from Lo to Guffey, an affidavit of Lo submitted in support of his motion seeking dismissal of the complaint, and a transcript of 1.0 s deposition testiiiiony. A party moving for summaryjudgment must make aprima facie showing of entitlement to judgment as a matter of law, offering sufficient evidentiary proof in admissible form to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Zuckernirrii v City o New York, 49 NY2d 557,427 NYS2d 595 [ 19801; Friends ofAnimals v Associated f Fur Mfrs., 46 NY2d 1065,416 NYS2d 790 [ 19791). Once such a showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Alvnrez v Prospect llosp., GF: NY2d 320, 508 NYS2d 923; Zuckerman v City o New York, 49 NY2d 557,427 f NYS2d 595 1. Lien Law 9 3 provides, in relevant part, that a contractor . . . who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof is entitled to a mechanic s lien for the value or agreed price of the unpaid materials. Pursuant to Lien Law Cj 2 (81, the term improvement of real property means any improvement of real property not belonging to the state or a public corporation. Lien Law Q 2 (9) defines the term contractor as a person who enters into a contract with the owner of real property for the improvement thereof, and Lien Law 5 2 (4) defines the term impro\~enient including the demolition, erection, alteration or repair of any structure upon . as . . anj real property and any work done on such property or materials furnished for its permanent impro\icmetit. Further, Article 3-A of the Lien Law provides that a statutory trust is created for funds receiL ed by owners, contractors, or subcontractors in connection with an improvement of real property in this state (Licn Law 9 70 [I]; Negveskyv UnitedInteriorResources, Inc., 32 AD3d 530,821 NYS2d 107 [2d Dept 20C61). The purpose of such trust is to ensure that certain parties involved in [such] improvement . . . u ill be properly compensated for their services (Sabol& Rice v Pouglzkeepsie Galleria Co., 175 AD2d 555,556. 572 NYS2d 81 1 [3rd Dept 19911; see Matter of Bette & Cring, LLC v Brandle Meadows, LLC, 81 AD3d 1 1 52, 91 7 NYS2d 71 7 [3d Dept 201 11; Negvesky v United Interior Resources, Inc., 32 AD3d 530. 821 NYSS2d 107). When questioned at his deposition about the work performed at the Water Mill residence, plaintiff testilicd that he drew floor plans for Lo showing how the rooms should be arranged and advised him on treatmcnts to usc for the walls and floors. He testified that he specified all the plumbing fixtures . . . specified granite tops. cabinets, flooring in the kitchen . . . specified window styles . . . specified the diesign of the fireplace . . . [and] specified all hardware for all doors . . . and the color of the paint of the [exterior] of the house. He testified that he specified the purchase of such items as furniture, rugs, lighting fixtures and accent pillows, specified the materials, design, construction and installation of curtains. and specified the placement of furniture and artwork in the rooms. Plaintiff also explained that his job in\.olved both purchasing items for the house, which he would do either with or without Lo, as well as telling I,o \$hat items should be purchased. Further, in an affidavit submitted in opposition to Lo s dismissal motion, plaititiff averred that his job as a decorator for the Water Mill property included space planning, selection ofli.trniture, ,selectionof fabrics, supervision of furniture restoration, curtain making and upholstery [* 4] Keycs v 1,o Index N o . 07-25 149 Page No. 4 work. I le stated he made several trips from Florida to New York to insure that the furniture was properly placed, bul: never performed work on the premises. In addition, plaintiff stated in the affidavit that he did not swing a hammer or take a saw to the structure, but provided merchandise and worked on that merchandise before it was delivered. Although Lien Law 9 3 should be liberally construed to secure the purposes for which it was intended. namely the protection of that class of people who perform services or supply the material lor the f improvenient ofrealty (Matter o Claudia Perfetta, Inc. v Waste Mgt. o f N . K , 274 AD2d 389, 390, 71 0 NYS2d 120 120001; see Lien Law 6 23), the evidence submitted in support of the motion establishes prima facie that thc decorating services, furniture and furnishings provided by plaintiff for the Water Mill residence do not cons litute tlie permanent improvement of property (see Negvesky v United Interior Resowces, Inc.. 32 ADid 530,821 NYS2d 107; Dura-BuiltCorp. vPolimeni, 87AD2d66I7448NYS2d842[2dDept iy f 19821). The burden, therefore, shifted to plaintiff to raise a triable issue of fact (see Zuckerman v Ct o New York, 49 NY2d 557,427 NYS2d 595). Plaintiirs submissions in opposition are insufficient to defeat LO Smotion for partial suiiiniary .judgment. Significantly, plaintiffs affidavit states only that lie supervised the purchase of furniture. furnishings and fixtures and the interior decoration of the Water Mill property, and that his job included space plan ling. selection of furniture, selection of fabrics, supervision of furniture restoration, curtain mal&ig and upholstery work. It also states that much of the furniture and fixtures used in the Water Mill house came from plaintiffs West Palm Beach store. No showing has been made, however, that the furniture or furnishing actually supplied by plaintiff were incorporated or installed in the residence so as to constitute a permanent improvement to the property (see Lien Law 3 2 [4]; cf: Walile-Plzillips Co. v Fitzgernltl, 225 N Y 137, 121 NE 763 [1919]; Monroe Sav. Bank v First Natl. Bank o Waterloo, 50 AD2d 314., 377 f NYS2d 827 [4th Dept], uppeal denied 39 NY2d 708, 385 NYS2d 1027 [1976]). The Court notes the fiindamental rule of statutory construction that a statute must be construed as a whole, and all parts of (an act must be read and considered together to determine the legislative intent (see Sanders v Winsltip, 57 NY2d 391, 396, 456 NYS2.d 720 [1982]; People v Mobil Oil Corp., 48 NY2d 192, 422 NYS2d 33 [1979]; McKinney s Consol. Laws ofN.Y., Book 1, Statutes, 5 98). Every part of a statute must be given meaning and efl ect (Heard Crromo, 80 NY2d 684, 689, 594 NYS2d 675 [1993]). Even assuming, for purposes of the instnnl motion, that Lo failed to pay plaintiff for furniture, furnishings, fabric and curtains that were used lo re-decorate the Water Mill residence, and that Lo was contractually obligated to pay plaintiff for his consulting scrviccs and supervision of the decorating project, the Court finds a determination that supplying such casily and customarily moved items, or providing such decorating services, constitutes work clone . . . or materials furnished within the scope of Lien Law fj 3 would ignore the statutory requirement that the labor or matcrials supplied by the lienor were for the permanent improvement of the real property. 17 Finally. as to plaintiffs contention that this Court already determined he was entitled to a mechalnic s lien. tlie law of the case doctrine provides that once an issue is judicially determined, it is not to be rcconsidcred by -judges or courts of co-ordinate jurisdiction in the course of the same litigation (Hnll~oway 11 Clin Clin Laundry, 97 AD2d 385,386,467 NYS2d 834 [Ist Dept 19831; see People v Evans, 94 NY2d 499. 706 NYS2d 678 [2000]; Martin v City ofCohoes, 37 NY2d 162, 371 NYS2d 687 [1975]). The doctrine applies only to legal determinations that were necessarily resolved on the merits in the prior dccision (Gilligan v Reers, 255 AD2d 486, 487, 680 NYS2d 621 [2d Dept 19981, quoting Baldasnno v [* 5] Reyes v Lo Inde?t No. 07-25 149 Page No. 5 Bnrih o f N . Y., 199 AD2d 184, 185,605 NYS2d 293 [ 1st Dept 19931; see RPG Consulting, Iiic. vZoriati, 82 AD3d 739, 917 NYS2d 897 [2d Dept 201 13). Here, the July 2008 order denying Lo s motion under CP1.R 321 1 addressed the sufficiency of the allegations in the complaint, and does not bar a finding on a subsequent summary judgment motion that the mechanic s lien filed by plaintiff against the Water Mill propei-tj was invalid (see Teller vBillHayes, Ltd., 213 AD2d 141,630NYS2d 769 [2d Dept 1995];A4indel I) Village ojrT/zoi?iastoii,150 AD2d 653, 541 NYS2d 526 [2d Dept 19891; Tenzer. Greenblutl, Fullon & Knplmi v C,npriJewelry, 128 AD2d 467, 5 13 NYS2d 157 [ 1st Dept 19871). Thus, the statement in the July 2008 order that the interior decoration of a home may constitute improvement and/or services that would be lienable under the Lien Law was not a determination on the issue of whether plaintiff furnished labor o i material>8 the improvement of real property (see Thompson v Lamprecht Tramp., 39 AD3d 846, for 834 NYS2d 3 12 [2d Dept 20071; Kidd v Delta Funding, 299 AD2d 457,75 1 NYS2d 267 [2d Dept 20021). Accordingly, the motion for summary judgment dismissing the first and third causes of action is granted, and it is declared that the money obtained by Lo from the sale of the Water Mill property does not constitute trust assets within the scope of Lien Law 3 70. fhe thregoing constitutes the Order of this Court. Dated: March 13, 2013 Rivorhead, NY __ FINAL DISPOSlTION X NON-FINAL DISPOSITION

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