Melcon Gen. Contr., LLC v ELUL 1080 Leggett LLC

Annotate this Case

Download PDF

Melcon Gen. Contr., LLC v ELUL 1080 Leggett LLC 2019 NY Slip Op 32211(U) February 8, 2019 Supreme Court, Bronx County Docket Number: 26920/2016E Judge: Ruben Franco 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. [*FILED: 1] BRONX COUNTY CLERK 02/14/2019 03:26 PM NYSCEF DOC. NO. 55 INDEX NO. 26920/2016E RECEIVED NYSCEF: 02/14/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX - IAS PART 26 MELCON GENERAL CONTRACTORS, L.L.C. Index No. 26920/20 16E Plaintiff, -against- MEMORANDUM DECISION/ORDER ELUL 1080 LEGGETT LLC and JOHN DOES " l " Through "25" said parties being lienors who have yet to perfect their liens and being fictitious and unknown to Plaintiff. Defendants Ruben Franco, J. : This action is to fo reclose on a mechanic' s lien. Plaintiff moves to amend the Complaint to, in essence, add amounts owed for additional work performed, and to have the Amended Complaint deemed served via electronic case filing. Defendant cross-moves, as is pertinent here, to compel plaintiff to provide an itemized statement of plaintiff's Notice of Mechanic' s Lien (Lien), pursuant to Lien Law § 38. The facts, as set forth in the Complaint, are that on June 18, 20 15, plaintiff and non-party Sunrise Cooperative Inc. (Sunri se) entered into an agreement whereby plaintiff was to perform construction and improvement work for the project known as 1080 Leggett A venue Fit-Out (··project"). Defendant owns the subj ect premises and consented to the work perfo rmed by plaintiff. As of August 19, 20 16, there was a balance of $966,216.56 owed to plaintiff from Sunrise for work performed, which plaintiff has demanded. On October 4, 20 16, p laintiff fi led a Lien for the sum owed. Plainti ff's attorney submits an affirmation in which he states that on March 28, 20 17, an Amended Lien was filed in the sum of$ 1,337,047. 19 (Amended Lien). Sunrise fi led for bankruptcy, and defendant all eges that plaintiff performed work after Sunrise fi led for bankruptcy for which plaintiff is seeking the amount of $370,830.63. Plaintiff asserts that defendant will not be prejudiced by the amendment inasmuch as the amendment is only seeks to update the Complaint to refl ect the current circumstances, of which 2 of 5 [*FILED: 2] BRONX COUNTY CLERK 02/14/2019 03:26 PM NYSCEF DOC. NO. 55 defendant is aware. INDEX NO. 26920/2016E RECEIVED NYSCEF: 02/14/2019 Moreover, plaintiff argues that failing to allow the amendment would prejudice it by preventing plaintiff from litigating the full claim against defendant. Defendant does not dispute that the work was done, however, its opposition to plaintiff's motion rests on the following argwnents: (1) plaintiff fai led to provide sufficient evidence to support the amount of its lien; (2) plaintiff's lien includes work that was allegedly perfo1med after Sunrise filed for bankruptcy and was not approved ; (3) plaintiff's lien is barred by the Lien Law; and, successive liens can only be used to cure an irregularity, which does not include increasing the sum of a lien. P laintiff asserts that it has already provided evidence supporting the amounts contained in the Amended Lien, and denies that work was perfom1ed after obtaining knowledge that Sunrise had filed for bankruptcy. CPLR 3025 (b) provides: A party may amend hi s or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading. Generally, leave to amend or supplement pleadings "shall be freely given," unless the amendment sought is palpably improper or insufficient as a matter oflaw, or unless prej udice and surprise directly result from the delay in seeking the amendment (Fahey v County of Ontario, 44 N Y2d 934, 935 [1978] ; McCaskey. Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [ 1983]). The Court in 360 W l Jth LLC v ACG Credit Co. fl, LLC (90 AD3d 552, 553 [ !51 Dept 2011]) stated that ·'a court must examine the merit of the proposed amendment in order to conserve judicial resources" (citing Zaid Theatre Corp. v Sona Realty Co., 18 AD3d 352, 354-355 [(I st Dept) 2005])." A proposed amendment which is devoid of merit should not be permitted (see Miller v Cohen, 93 AD3d 424, 425 [1 51 Dept 2012]; Lucido v Mancuso, 49 AD3d 220, 226 [2 11d Dept 2008]). Lien Law§ 38 provides: 2 3 of 5 [*FILED: 3] BRONX COUNTY CLERK 02/14/2019 03:26 PM NYSCEF DOC. NO. 55 INDEX NO. 26920/2016E RECEIVED NYSCEF: 02/14/2019 A Jienor 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 materia l and tbe value thereof which make up the amount for which he claims a lien, and which shall also set fo rth the terms of the contract under which such items were furnished. The statement shall be verified by the lienor or his agent. ... If the lienor sha ll fail to comply with such a demand w ithin fi ve days after the same shall have been made by the owner or contractor, or if the lienor delivers an insufficient statement, the person aggri eved may petition the supreme court . . . for an order directing the lienor within a time specified in the order to deliver to the petitioner the statement required by this section. Two days' notice in writing of such appl ication shall be served upon the lienor. Such service shall be made in the manner provided by law for the personal service of a summons. The court or a justice or judge thereof sh al1hear the parties and upon being satisfi ed that the lienor has failed, neglected or refused to comply with the requirements of this section shall have an appropri ate order directing such compliance. Jn case the lienor fail s to comply wi th the order so made w ithin the time specified, then upon five days' notice to the lienor, served in the manner provided by law for the persona l service of a summons, the court or a justice or judge thereof may make an order canceling the lien. In Maller of Solow v Bethlehem Steel Corp. (60 AD2d 826 [1 51 Dept 1978]), the Court explained: '·Section 38 of the Lien Law does not establish an absolute right to a detailed statement from a lienor as to all the items of labor and/or material and the value thereof for which he claims a lien but does require a statement from a lienor as to items in dispute" (citing Matter o/819 Sixth Ave. Corp. v T & A. Assoc., 24 AD 2d 446 [I 51 Dept 1965])." Thus, the lack of specificity is not necessari ly a basis to deny plaintiffs request to amend its Complaint, however, it is sufficient to grant defendant's cross motion to compel production of the specifics. In order for a Notice of Lien to be va lid, it must substantially compl y with the requirements of Li en Law § 9. With respect to amending a lien, Lien Law § 12-a provides: 1. Within sixty days after the original filing, a lienor may amend his lien upon twenty days notice to existing lienors, mortgagees and the owner, provided that no action or proceeding to enforce or cancel the mechanics' lien has been brought in the interi m, where the purpose of the amendment is to reduce the amount of the lien, except the question of wilful exaggeration shall survive such amendm ent. 2. In a proper case, the court may, upon five days' noti ce to ex isting lienors, mortgagees and owner, make an order amending a notice of lien upon a public or pri vate improvement, nunc p ro tune. However, no amendm ent shal l be granted to the prejudice of an existing lienor, mortgagee or purchaser in good fai th, as the case may be. 3 4 of 5 [*FILED: 4] BRONX COUNTY CLERK 02/14/2019 03:26 PM NYSCEF DOC. NO. 55 INDEX NO. 26920/2016E RECEIVED NYSCEF: 02/14/2019 Thus, pursuant to Lien Law § 12-a, if the lienor establishes the validity of a lien by showing substantial compliance with Lien Law§ 9, the notice may be amended nunc pro tune, unless the amendment would prejudice existing mortgagees, purchasers or other lienors. In Maller ofPerrin v Stempinski Realty Cmp., ( 15 A.0.2d 48, 49-50 [ 151 Dept 1961 ]), the court refused to permit the amendment, however, the Court noted that an increase in the amount of the lien could be permissible in the "proper case" where there is some proof submitted to justify the court in allowing the amendment. The court finds that defendant has fai led to show that plaintiff's proposed amendment to its Complaint is palpably improper, insufficient as a matter of law, or devo id of merit. Notably. defendant concedes that plaintiff completed the additional work on the project, Accordingly, plaintiffs motion to amend the Complaint as set forth in its motion, is granted. The Amended Complaint is deemed served via electronic case filing. Defendant' s cross motion to compel plaintiff to provide an itemized statement of plaintiff's Amended Lien, pursuant to Lien Law § 38, is granted to the extent that plaintiff shall supply to defendant such items and information not already provided, within five days of receipt of a copy of this Order with Notice of Entry. Plaintiff shall serve a copy of this Order upon defendant with Notice of Entry, within 20 days hereof The foregoing constitutes the Decision and Order of the court. Dated: February 8, 2019 Ruben Franco, J.S .C. HON. RUBW fRANCO 4 5 of 5

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.