5 Bros., Inc. v D.C.M. of N.Y., LLC

[*1] 5 Bros., Inc. v D.C.M. of N.Y., LLC 2013 NY Slip Op 50395(U) Decided on March 21, 2013 Supreme Court, Kings County Demarest, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 21, 2013
Supreme Court, Kings County

5 Brothers, Inc. a/k/a AVON CONTRACTORS;, Plaintiffs,

against

D.C.M. of New York, LLC, D.C.M. OF NEW JERSEY, LLC, BRIAN ABBEY, ALEXANDER'S KING PLAZA CENTER, INC., ALEXANDER'S OF BROOKLYN, INC., BEST BUY CO., INC., POLO ELECTRIC CORP., C.R. LAURENCE CO, INC., JE BERKOWITZ, LP, DIAM-N-BLU MECHANICAL CORP., VINTAGE FLOORING & TILE, ANIXTER, INC., THE DAVIDSON GROUP, INC., and WELLS FARGO BANK, N.A.; , Defendants.



500824/2011



Attorney for General Contractor, D.C.M. of New York, LL" target="_blank"> Sullivan Contr., Inc. v Turner Constr. Co., 60 AD3d 1315 [4th Dept 2009](notice defective for failure to state labor performed and materials furnished, as well as the value thereof); Onorati v Testco., Inc., 204 AD2d 876 [3d Dept 1994](notice defective for failing to name proper lienor).

Moreover, DCM, which is not an existing lienor, mortgagee, or a purchaser in good faith, does not fall within one of the enumerated categories of § 12-a, which precludes amendment nunc pro tunc upon a showing of prejudice, and, thus, cannot oppose the amendment on the grounds of prejudice (see Commander Elec., Inc. v Lerner, 54 AD2d 698 [2d Dept 1976]). In any event, there can be no prejudice to DCM in light of its prior abandoned attempt to discharge the lien, which was answered by a New York attorney. None of the other parties have opposed JEB's motion to amend, and at any rate, the other lienors will be not be prejudiced by the retroactive inclusion of the general partners' names and JEB's New York attorney's address.

Accordingly, JEB is granted leave to serve and file an amended lien notice within 20 days, which notice will be deemed amended nunc pro tunc. Should JEB fail to timely serve and file such amended notice curing the defects in its original notice, DCM's motion to dismiss will be granted, and JEB's lien will be discharged.

CONCLUSION

JEB is granted leave to serve and file an amended lien notice within 20 days, which notice will be deemed amended nunc pro tunc. Should JEB fail to timely serve and file such amended notice curing the defects in its original notice, DCM's motion to dismiss will be granted, and JEB's lien will be discharged.

The foregoing constitutes the decision and order of the Court.

E N T E R:

__________________________________

HON. CAROLYN E. DEMAREST, J.S.C. Footnotes

Footnote 1: In its lien notice, JEB describes itself as "a New Jersey corporation," but includes the Limited Partnership (LP) designation in its name. A search of the New Jersey Business Records Service database reveals that the name of the entity is "J.E. Berkowitz, Limited Partnership." JEB, in its motion, also refers to itself as a limited partnership. Thus, the Court will treat this entity as a limited partnership and not a corporation.

Footnote 2: The Court is not presented with facts concerning whether JEB's then-attorney, Michael C. Brown, Esq., was authorized to practice law in the State of New York.