EFCO CORP. v. HELENA ASSOC.

Full title: EFCO CORPORATION, Petitioner, v. HELENA ASSOCIATES LLC, FOUR PLUS J.S.C…

Court: Supreme Court of the State of New York, New York County

Date published: Jun 8, 2007

2007 N.Y. Slip Op. 31668 (N.Y. Sup. Ct. 2007)

Opinion

0601933/2006.

Decided June 8, 2007.

Decision/Order

JUDITH J. GISCHE, J.

Upon the foregoing papers, the decision and order of the court is as follows:

The underlying action is for breach of payment allegedly due under a contract dated April 18, 2003 between plaintiff EFCO Corporation ("EFCO" or plaintiff), and defendant, Helena Associates, LLC ("Helena" or defendant), for labor and materials, provided for the improvement of a residential tower located at 601 West 57^th Street, New York, New York (the "Property"). Defendant Helena holds a leasehold interest in the Property. Defendant previously brought a motion for an order: granting summary judgment, summarily discharging of record EFCO's lien, and canceling EFCO's Notice of Pendency and plaintiff EFCO cross moved for an order granting permission to: serve an amended Verified Complaint, and file an amended lien.

The court denied Helena's motion for summary judgment, granted Helena's motion to cancel EFCO's notice of pendency and granted EFCO's cross motion for the reasons set forth in the court's decision and order of March 6, 2007.

Helena now moves to reargue the court's decision denying defendant's motion for summary judgment and granting plaintiffs cross motion.

The gravamen of defendants' motion to reargue is that because EFCO failed to state the contract price or value of the labor performed and materials furnished as required by Lien Law 9(4), the court misapplied the law when it held that EFCO's Notice of Mechanic's Lien substantially complied with the requirements of the Lien Law. Defendant relies uponBrescia Const. Co., Inc. v Walart Const. Co., Inc., 249 A.D. 151 (1^st Dept. 1936), aff'd, 273 N.Y. 648 (1937), which it claims this court failed to follow. Defendant contends that Brescia is directly on point and that upon application of Brescia, this court must find that EFCO's Notice of Mechanic's Lien is invalid.

As more fully set forth below, the court hereby grants reargument of defendant's original motion and the court's decision. Upon reargument, the court finds that the Brescia decision does not affect the outcome of the underlying motions or the original decision and order dated March 6, 2007.

Brescia, and the related decisions in Matter of Brescia Const. Co., Inc. v. Walart Const. Co., Inc., 238 A.D. 45 (1^st Dept. 1933), aff'd, 264 N.Y. 260 (1934), Brescia Const. Co. Inc. v. Walart Const. Co., Inc., 238 A.D. 360 (1^st Dept. 1933), and Brescia Const. Co., Inc. v. Walart Const. Co., 245 A.D. 105 (1^st Dept. 1935), involved a notice of lien which had "not stated the value of the labor performed and materials furnished, but merely has stated the amount unpaid as the whole value of the services performed and materials furnished.". Specifically, the notice of lien inBrescia stated that "the value or agreed price of the labor and materials [was] $11,490.65, and that the amount unpaid thereon [was] in that sum," while the complaint alleged that "the agreed price and reasonable value of the labor performed and materials furnished [was] the sum of $18,788.20, upon which has been paid the sum of $7,297.55, leaving a balance of $11,490.65 ( supra, 328 A.D. 360).

The courts in both Brescia, 238 A.D. 360 and Brescia, 249 A.D. 151 each cite Mitchell v. Dunmore Realty Co., 126 A.D. 829 (1^st Dept. 1908) as controlling precedent. In Mitchell, the court held that where the agreed price and value of materials in a notice of lien differs from the complaint, "this cannot . . . be deemed a compliance with the requirements of the Lien Law, if the notice of lien is to be understood as referring to the same contract that is set forth in the complaint."

The notice of liens in Brescia and Mitchell are readily distinguishable from the instant notice of lien. Defendant does not now contend (nor in its prior motion state) that the contract price or value of the labor performed and materials furnished differed between the complaint and the notice of lien. Instead, the instant notice of lien merely omitted the contract price or full value of all the labor performed and materials furnished. Appropriate reference to the correct contract, however, was clearly made.

Therefore, the issues raised in Brescia are factually distinguishable.

Even were the court to find that Brescia is indistinguishable from the case at bar, the court would still adhere to its March 6, 2007 decision.Brescia is a 1933 decision that stands alone. More modern appellate authority, including the authority of this department, have held that notices of lien, which deviate even more substantially from the claimed defects in this case, are amendable. PM Contr. Co. Inc. v. 32 AA Assoc., 4 A.D.3d 198 (1^st Dept. 2004); Peachy v. First 97-101 Reade St. Assoc., 180 A.D.2d 474 (1^st Dept. 1992); Matter of Perrin v. Stempinkski Realty Corp., 15 A.D.2d 48 (1^st Dept. 1961), appeal dismissed, 11 N.Y.2d 931 (1962); Melniker v. Grae, 82 A.D.2d 798 (2nd Dep't 1981); Matter of Nimke v. Inta-State, Inc., 34 A.D.2d 675 (2nd Dept. 1970); Matter of Forman v. Pala Const. Co., Inc., 124 A.D.2d 453 (3rd Dept. 1986); and Matter of Meo v. Skellyway Const. Co., 30 A.D.2d 606 (3rd Dept. 1968).

Accordingly, Helena's motion to reargue is hereby granted and the court adheres to its prior decision dated March 6, 2007.

Any relief not expressly addressed herein has nonetheless been considered by the Court and is denied.

This shall constitute the decision and order of the Court.