Supreme Gen. Contr., Inc. v Warman

Annotate this Case

Download PDF

Supreme Gen. Contr., Inc. v Warman 2018 NY Slip Op 32737(U) July 9, 2018 Supreme Court, Kings County Docket Number: 505270/17 Judge: Johnny Lee Baynes Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 50527~jJ17 [*[FILED: 1] KINGS COUNTY CLERK 10/24/2018] NYSCEF DOC. , NO. 103 1f· 10/~ RECEIVED NYSCEF: • 0(l1b tN/J--L At an IAS Part 68 of the Supreme Court of the State ofNew York, held in and for the County of Kings at the Courthouse thereof located at 360 Adams Street, Brooklyn, NY 11201, on the 9th day of July, 2018 ~ 4- PRESENT: HON. JOHNNY L. BA YNES r:o ~Ii. _ef C-...1..._ JSC ------------------------------------------------------------------------x i h..__, lo Index No. 505270/17 _/ SUPREME GENERAL CONTRACTING, INC. 1, Plaintiff, -againstMICHAEL WARMAN, MOJISOLA ROTIBI WARMAN, LOUIS DILAURO, LEYDEN YNOBE LEWIS, LLC, AM TITLE, INC., NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, TRIARCH, INC., LUSTRIN TETELMAN ADLER LLP, = •'"' ~ co 0 GI ('"") u~ --! -··CJ N .+;- :--c= ::t:. ci·-\ :: Defendants. -- ......, -'~o i-'1~ -< ;;-; - --· ':-:' U'1 r· M A ------------------------------------------------------------------------x Defendant A.M Title Agency, Inc. s/h/a AM TITLE, INC., (hereinafter "AM") moves by .·:~ Notice of Motion, dated September 14, 2017, fork Order pursuant to Lien Law§ 20, determining the amount required to be deposited into Court to effect the discharge of the ~·:. C· mechanics lien flled by plaintiff, Supreme General Contracting, Inc., 1 (hereinafter "Supreme" . '. J ;·-- ,·-:· and the mechanics lien filed by the defendant Leyden Ynobe Lewis, LLC, (hereinafter "Leyden"). Plaintiff, Supreme, moves by Notice of Cross-Motion, dated November 7, 2017, for an Order pursuant to Lien Law§ 20, for an Order directing A.M. to pay plaintiff directly the sum of "'" ~· !i· 1 of 4 l [*[FILED: 2] KINGS COUNTY CLERK 10/24/2018] NYSCEF DOC. NO. 103 ' INDEX NO. 505270/2017 RECEIVED NYSCEF: 10/25/2018 . One Hundred and Sixty Thousand ($160,000.00) Dollars with interest to discharge plaintiffs lien. Defendant, Michael Warman (hereinafter "Warman") moves by Notice of Cross-Motion, dated November 10, 2017, for an Order dismissing the cross-claim of Leyden; denying the cross motion filed by Supreme and voiding the lien pursuant to Lien Law§ 39 on the grounds that the lienor has wilfully exaggerated the amount for which it claims a lien as stated in its notice of lien. The instant action concerns a mechanics lien filed by plaintiff in the sum of $160,000 for improvements to the premises located at 848 Carroll Street, Brooklyn, NY, Block 1072, Lot 14 (hereinafter the "Premises"). After he purchased the premises on December 31, 2012, he retained plaintiff to perform the renovation of the premises. Plaintiff and Warman thereafter agreed to a fee of $225,800 "subject to additions and deductions as provided in the contract document". A schedule of payments was agreed upon. Warman claims that plaintiff never finished the work as agreed and instead presented him with change orders which Warman claims were never agreed upon, in the sum of $140,000. It is Warman's position that plaintiff had received $180,000 in payments and was not owed the sums set forth in the mechanics lien. On January 18, 2017, the premises were sold to Defendant, Louis DiLauro (hereinafter "DiLauro") and an escrow held by AM for twice the amount of the mechanics liens asserted at the time. Since that date, the mechanics lien filed by Leyden has been dismissed for defective service. Warman has asserted, on information and belief, that plaintiff negotiated with DiLauro to complete the work and has, in fact, contracted to do so for the sum of $200,000. Warman now seeks to dismiss the mechanics' lien stating that the amount set forth in the lien was wilfully inflated. A.M., acting as stakeholder, seeks certainty in the amount required to satisfy the mechanics' lien and remove any and all cloud from title to the premises. Plaintiff 2 of 4 [*[FILED: 3] KINGS COUNTY CLERK 10/24/2018] '. NYSCEF DOC. NO. 103 ' . INDEX NO. 505270/2017 RECEIVED NYSCEF: 10/25/2018 seeks direct payment of $160,000 claiming that the escrow agreement between AM and Warman provides for immediate tender of the escrow funds. However, Warman clearly disputes the amount asserted. There are issues of fact as to how much exactly is owed and those determinations cannot be made based upon affidavits filed by the parties. Moreover, if, as Warman asserts, plaintiff has wilfully misstated the sums owed, then plaintiff would not be entitled to any sums whatsoever pursuant to Lien Law§ 39. Lien Law§ 39 provides in pertinent part: In any action or proceeding to enforce a mechanic's lien upon a private or public improvement or in which the validity of the lien is an issue, if the court shall find that a lienor has wilfully exaggerated the amount for which he claims a lien as stated in his notice of lien, his lien shall be declared to be void and no recovery shall be had thereon. No such lienor shall have a right to file any other or further lien for the same claim. A second or subsequent lien filed in contravention of this section may be vacated upon application to the court on two days' notice. At this juncture, the court is unwilling to dismiss the plaintiffs lien or award it full payment as there are issues of fact surrounding whether plaintiff has actually recovered the sums due from DiLauro, whether it has intentionally overstated the amounts set forth in the mechanics lien or whether there are sums remaining due which plaintiff has asserted in good faith. WHEREFORE, it is hereby ORDERED and ADJUDGED that this matter will be heard by the Court on October 22, 2018, at which time plaintiff is to prove the sums allegedly owed by Warman including all sums paid by DiLauro and is to present any and all agreements between plaintiff and DiLauro; so that the Court can determine if dismissal of the plaintiffs interest is appropriate pursuant to Lien Law § 39 or if payment is appropriate pursuant to Lien Law§ 20; and it is further 3 of 4 [*[FILED: 4] KINGS COUNTY CLERK 10/24/2018] INDEX NO. 505270/2017 .. NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 10/25/2018 ORDERED and ADJUDGED that any sums held by A.M. in excess of$160,000, including sums to which an interest was asserted by Leyden, and which are not subject to liens not a part of this litigation, are to be distributed as appropriate, per the contract of sale between Warman and DiLauro no later than August 15, 2018; and it is further ORDERED and ADJUDGED that the sum of $120,000 is to be paid into Court pending the hearing and determination of the hearing schedule for October 22, 2018, and upon such payment being made into Court, the mechanics lien will be deemed satisfied The foregoing constitutes the decision and order of the court ENTER /JO YLBA YNES, JSC w:fo· lC1i'ot1'tl'< 4 of 4 \.f.~ ~'tlES

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.