In the Matter of Delilah Rigano,, Respondent,v.Vibar Construction, Inc., Appellant. (And Another Proceeding.)

Brief

N.Y.November 18, 2014

To be Argued by: JOHN BRIAN MACREERY Time Requested: 15 Minutes (!tourt of Appruls ~tatt uf NtlU :murk DELILAH RIGANO, as Administrator of the Estate of NICHOLAS RIGANO, also known as NICK RIGANO, - against- VIBAR CONSTRUCTION, INC., Petitioner-Respondent, Respondent-Appellant. Appeal No.1 VIBAR CONSTRUCTION CORP., Petitioner-Appellant, - against- FAWN BllLDERS, INC. and DELILAH RIGANO, Appeal No.2 Of Counsel: Respondents-Respondents. BRIEF FOR RESPONDENT DEREN, GENETT & MACREERY, P.C. Attorneys for Respondent 28 Edgemont Road Katonah, New York 10536 (914) 232-8174 JOHN BRIAN MACREERY March 26, 2014 Appellate Division - Second Department Docket Nos. 2011-9478, 2011-9484 Westchester County Clerk's Index Nos. 18924110 & 21632110 . Appeal Press, LLC - (914) 761-3600 (212) 267-6602 (16658) STATEMENT PURSUANT TO SECTION 500.I(f) OF THE COURT OF APPEALS RULES OF PRACTICE Fawn Builders, Inc. has no parents, subsidiaries or affiliates. 1 STATEMENT PURSUANT TO SECTION 500.13(a) OF THE COURT OF APPEALS RULES OF PRACTICE' Contrary to the statement of the appellant, there is other related litigation between the parties as of the date the brief is completed. On February 29, 2008 Vibar Construction Inc. and George Vignogna commenced an action in Supreme Court Westchester County against Fawn Builders, Inc. (R238). Vibar Construction, Inc., appellant herein, and George Vignogna, its president, commenced this action with Michael F.X. Ryan, Esq. as their attorney (R-238). The complaint, verified by George Vignogna alleged that plaintiffs were owed money for services rendered with respect to property purportedly owned by respondent Fawn Builders, Inc. known as Section 3 Block 9031 Lot 214 in the Town of Pound Ridge, New York and Section 3 Block 9031 Lot 215 in the Town of Pound Ridge, New York (F239-247). Respondent Fawn Builders, Inc. interposed a verified answer May 2, 2008 (R248-251). In its verified answer, Fawn Builders, Inc. denied that it was the owner of Lot 215 (R249) . I Numbers in parentheses, preceded by the letter "Roo refer to the pages in the Record on Appeal. Numbers in parentheses, preceded by the letters "SR" refer to the pages in the Supplemental Record on Appeal. 11 appellant and George Vignogna alleged on May 14, 2008 that Nicholas Rigano and Fawn Builders, Inc. were the owners of Section 3 Block 9031 Lot 215 in the Town of Pound Ridge, State of New York (R260). The respondent Fawn Builders and Nicholas Rigano interposed an answer denying liability (SRl-3). The respondent Fawn Builders, Inc. and Nicholas Rigano by their counsel served discovery demands on the plaintiff's counsel (R267-272). The attorneys for the appellant and George Vignogna have not responded to those discovery demands but the underlying civil action remains pending in Supreme Court Westchester County with a Westchester County Index No. : 2008-004439. 111 TABLE OF CONTENTS Table of Contents Statement Pursuant to Section 500.1(f) of the Court of Appeals Rules of Practice Statement Pursuant to Section 500.13(a) of the Court of Appeals Rules of Practice Table of Cases and Authorities Statement of Facts . Point I THE NOTICE OF MECHANIC'S LIEN IS MATERIALLLY AND FATALLY DEFECTIVE Conclusion 1 1 i ii 2 5 19 33 TABLE OF CASES AND AUTHORITIES CASES Matter of Kleet Lbr. Co. (DMC Mgr.) , 197 AD2d 576 (2nd Dept. 1993) .. Tri-State Sol-Aire Corp. v. Lakeville Pace Mech., 221 AD2d 519 (2nd Dept. 1996). . . . . Gates & Co. v. National Fair & Exposition Assn. 225 NY 142 (1919) . . . . . . . . . 16, 20, 21 Inc. , 16, 20, 21 16, 20, 24, 25, 32 Matter of Tri-Quality Mech. Corp. v. 138 AD2d 610 (2nd Dept. 1988) ChappaStream Corp., DiPaolo v. H.B.M. Enters., 95 AD2d 794 (2nd Dept. 1983). P.M. Contr. Co. v. 32AA Assoc., 4 AD3d 198 (1st Dept. 2004) Covino v. Alside Aluminum Supply Co., 47 AD2d 77 I (4 th Dept. 1973) Homemakers, Inc. v. Williams, 100 AD2d 505 (2nd Dept. 19884) A.A. Sutain, Ltd. v. Montgomery Ward & Co., 22 AD2d 607 (1st Dept. 1965) .... Matter of Fibernet Telecom Group v. East Coast Opt. Servs. 16, 21 16 20, 22 21 21 21 195 Misc. 2d 461 .. ................ 21 Niagara Venture v. sicoli & Massaro, Inc. 77 NY 2d 175 (1990) .... Goodman v. Del-Sa-Co Foods, 15 NY2d 191 (1965) Aeschlimann v. Presbyterian Hosp., 165 NY 296 (1901) . . . . . . 2 25 27 27 Matter of Lustbader Contr. 144 Misc. 875 .... Toop v. Smith, 181 NY 283 (1905) Corp. , Matter of Perrin v. Stempinski Realty Corp. 15 AD2d 48 (1st Dept. 1961); Appeal dismissed 11 NY2d 931 (1962) Delany v. Carpenter 62 Misc. 416 . Delany & Co. v. Duvoli, 278 NY 328 (1938) GCMD Ironworks, Inc. v. GJF Const. Corp. 292 AD2d 495 (2nd Dept. 2002) Beck v. Catholic University, 172 NY 387 (1902) Matter of Piston v. Lincoln Supply Co., 37 Misc. 22 1003 Mahley v. German Bank of Buffalo, 174 NY 499 (1903) ... Empire Pile Driving Corp. v. Hylan Sanitary Services, 32 AD2d 563 (2nd Dept. 1969) ..... Inc. , Sullivan Contracting, Inc. v. Turner Construction Corp., 60 AD3d 1315 (4 th Dept. 2009) . . . . . . . . 3 27 28 29 29 30 30 31 31 31, 32 15, 32 15, 32 STATUTES Lien Law Section 3 30 Lien Law Section 9 19 Lien Law Section 9 (1 ) 19 Lien Law Section 9 (IA) 19 Lien Law Section 9 (2) 19 Lien Law Section .9 (3) 19 Lien Law Section 9 (4 ) 19 Lien Law Section 9 (5) 19 Lien Law Section 9 (6) 20 Lien Law Section 9 (7 ) 15, 16, 20 Lien Law Section 10 23, 29 Lien Law Section 12-A 14 Lien Law Section 23 31 Lien Law Section 39 27 4 STATEMENT OF FACTS' For many years George Vignogna, the principal of Vibar construction Corp. and Nicholas Rigano, President of Fawn Builders, Inc., were business partners (199). Over the years they built many homes together (R199). As confirmed by Mr. Vignogna (R54) Nicholas Rigano would provide the funds to purchase the properties (R199) and Mr. Vignogna and Mr. Rigano would do the work and oversee the project (R199). The last business project entered into between Mr. Rigano and Mr. Vignogna was the White Birch Lane Development. The project involved a five lot subdivision (R200, R205- 208). George vignogna and Nicholas Rigano intended to build a driveway (White Birch Lane) to provide access to four building lots (R200). The lot (Lot 214) (R205), owned by Nick Rigano and Fawn Builders together, was required to be donated to a conservation group as part of the subdivision approval (R205) Nick Rigano and Fawn Builders purchased Lots 214, 215 and 216. (R200) George Vignogna purchased Lot 212 (R200). Lot 213 is owned by Pound Ridge Holding Corp., (R200) George Vignogna's new partner. John Annicelli, is a principal of Pound Ridge Holding Corp. (R200). 'References to the record will be designated by the letter R followed by the appropriate page number(s). References to the supplemental record will be designated by the letters SR followed by the appropriate page numbers). 5 After Fawn Builders purchased Lots 214, 215 and 216, a common driveway construction maintenance and easement agreement was filed in the office of the westchester County Clerk (R200, R209-213). The building lot owned by George Vignogna (Lot 212) the lot owned by Pound Ridge Holding Corp. (Lot 213) and the two building lots owned by Fawn Builders (Lots 215 and 216) needed access to White Birch Road (R205). That was the whole purpose of developing White Birch Lane (R200). The Town of Pound Ridge approved a $158,600.00 bond to construct White Birch Lane (R201) based on George Vignogna's statements (R201, R220). Mr. Vignogna's partner, John Annicelli, agreed (as evidenced by handwritten note) that the driveway/road construction cost was $130,000.00 (R219). The original subdivision approval was amended because Lot 216 had wetlands issues (R202). The westerly boundary line of Lots 215 and 216 were moved west, so that Lot 216 could be developed (R202). The Town of Pound Ridge approved these lot line changes (R202). This was the state of affairs on February 14, 2007 when George Vignogna decided to break the partnership with Mr. Rigano (R200) and become partners with John Annicelli. On February 14, 2007, George Vignogna and Nicholas Rigano met at the offices of Michael Sirignano, Esq. the attorney for 6 George Vignogna (R202). Mr. Sirignano prepared three deeds which were executed on that date (R202-203). Mr. Vignogna's attorney, Michael Sirignano, Esq., prepared a deed for Nicholas Rigano to convey Lot 216 to George vignogna. Mr. Rigano and Fawn Builders conveyed Lot 216 to Vibar Construction (202). Lot 216 was conveyed to George Vignogna and Vibar Construction in full satisfaction of Mr. Rigano's obligation with respect to the construction that had been begun on White Birch Lane (R202). George Vignogna paid Fawn Builders and Nick Rigano nothing for Lot 216 (R221-224, R225). This lot had been purchased by Nicholas Rigano and Fawn Builders (R202, R221-225) for $100,000.00. The value of this property together with $25,000.00 previously paid to Mr. Vignogna (R214-215) fully compensated the appellant for the $150,000.00 it would cost to build white Birch Lane (R203). On the same day that Nick Rigano conveyed Lot 216 to Vibar Construction, and in George Vignogna's presence, Nick Rigano signed a deed prepared by Mr. Vignogna's attorney, Michael Sirignano, Esq. which deeded Lot 214 to Nick Rigano and Fawn Builders, Inc. (R2 03) . 7 On the same day, and also in George Vignogna's presence, Nick Rigano signed a deed prepared by Mr. Vignogna's attorney which conveyed Lot 215 from Fawn Builders, Inc. to Nick Rigano (R203). The new deed handed to Mr. Rigano in George Vignogna's presence incorporated the lot line changes required by the new subdivision approved by the Town of Pound Ridge (R203). George Vignogna knew that Nicholas Rigano was the owner of Lot 215 based upon his physical presence in the appellant's attorney's office when the transfer was made (R203). The real property transfer report for the transfer from Nick Rigano as seller to Vibar Construction Corp. as purchaser of Lot 216, clearly identifies Michael Sirignano as the attorney for the buyer, vi bar Construction Corp. (R225). After Nicholas Rigano and George Vignogna ended their partnership, John Annicelli (George Vignogna's new partner) filed three mechanic's liens in the Office of the Westchester County Clerk. Annicelli Engineering, P.C. filed a $29,718.34 mechanic's lien against Lot 214 (R357-359). Annicelli Engineering, P.C. filed a $42,388.34 mechanics lien against Lot 216 (George vignogna's lot) (R360-362). Annicelli Engineering, P.C. filed a $34,788.34 mechanic's lien against Lot 215 (Nick Rigano's lot) (R363-365) . These three mechanics liens dated May 14, 2007 filed by Annicelli Engineering, P.C. total $106,895.02. 8 All three of these mechanics liens are signed by John Annicelli (George Vignogna's business partner) and all three mechanics liens are notarized by Michael F.X. Ryan (R358, R361, R364). Michael F.X. Ryan is appellant's counsel herein. White Birch Lane was completely constructed by August 2007. Following an inspection, the Town of Pound Ridge released the bond in its entirety to George Vignogna based upon the completion of White Birch Lane (R217). On February 29, 2008, "vibar Construction, Inc." and George Vignogna brought a lawsuit against Fawn Builders, Inc. for breach of contract pertaining to the construction of White Birch Lane (R238-247) . Appellant and George Vignogna were and still are represented by Michael F.X. Ryan. In this complaint, the appellant and George Vignogna allege that "defendant owns and/or owned the land known as Section 3, Block 9031, Lot 215 in the Town of Pound Ridge, State of New York" (R240), which lot is the property encumbered by the mechanic's lien herein. Fawn Builders, Inc. interposed a verified answer to the complaint (R248-251) and served discovery demands (R252-256). In the respondent's verified answer, Fawn Builders, Inc. denied ownership of Lot 215 (R249) defendant alleged payment (R250). In the verified answer, the Upon receiving this confirmation that Fawn Builders did not own Lot 215, the appellant and George Vignogna served and filed a 9 supplemental summons and an amended verified complaint (R257- 266). In the May 14, 2008 amended verified complaint, the appellant and George Vignogna name Nick Rigano as an additional defendant and their complaint alleges that Nick Rigano was the owner of Lot 215 (R260). The amended complaint is verified by Michael F.X. Ryan (R265). The respondent and Nick Rigano denied the allegations in the amended complaint, alleged payment as a defense and served discovery demands (R267-272, SR 1-3) . Nicholas Rigano disputed, and his estate continues to deny that there are any monies owed to George Vignogna and/or "vibar Construction, Inc." of any kind. The respondents herein allege payment in full for the road (250). This litigation filed in Supreme Court Westchester County in February 2008 under Index No. 4439 of 2008 is still pending. Three years after George Vignogna and Nick Rigano had settled up their partnership in Mr. Vignogna's attorney's office, "Vibar Construction, Inc." filed a notice of mechanic's lien against Lot 215 (R46-48). This notice of mechanic's lien is the subject of this litigation. The notice of mechanic's lien sets forth that the name and address of the lienor as: "vibar Construction, Inc." The notice of mechanic's lien is dated "March 23, 2010" (R47). 10 The notice of mechanic's lien identifies the owner of the real property against which the lien is filed to be "Fawn Builders, Inc." (R46). The lien sets forth that the work performed was to "construct, excavate and build road and drainage" (R46). The notice of mechanic's lien states the name of the person by whom the lienor was employed, the name of the person to whom the lienor furnished materials, the name of the person with whom the contract was made and, the name of the person for whom professional services were rendered all to be: "Fawn Builders, Inc." (R46). The notice of mechanic's lien does not allege anywhere that Nick Rigano consented to any work, labor or service allegedly performed by appellant. The notice of mechanic's lien does not allege that the work, labor and services were performed with the consent of Fawn Builders, Inc. at any time within eight months of the filing of the notice of mechanic's lien. Quite obviously, no such allegation could be made, because the appellant was engaged in contested litigation with both Fawn Builders, Inc. and Nick Rigano continuously for the preceding two years! The notice of mechanic's lien alleges: "The material furnished was as follows: item 4, blacktop, fill, top soil and pipe. 11 The materials actually manufactured for but not delivered to the real property are N/A. The agreed price and value of the labor performed is $36,725.00. The agreed price and value of the material furnished is $116,500.00. The agreed price and value of the material actually manufactured for but not delivered to the real property is N/A. The agreed fee for professional service is $106,895.02. Total agreed price and value $302,508.36." (R46) The notice of mechanic's lien further sets forth: "The amount unpaid to the Lienor for said labor performed is $0. The amount unpaid to the lienor(s) for said material furnished is $0. The amount unpaid to lienor(s) for material actually mfd. For but not deliver to the real property is $ N/A. Total amount unpaid $ N/A. Total amount claimed for which this lien is filed is claimed for which this lien is filed is $302,508.36." (R47) The property subject to the lien was identified as: "Tax Map Designation: Section 3; Block 9031; Lot: 215 Street Designation: White Birch Lane" (R47) The notice of mechanic's lien alleges: "The time when the last item of work was performed was: December 15, 2010 The time when the last item of material was furnished was: December 15, 2010." (R47) George Vignogna and "vibar Construction, Inc." filed this mechanic's lien at a time when George Vignogna knew that Nick 12 Rigano was dying. He had been told this by their mutual friend Robert E. Kelly (R294) and Ray Lienau (R292). George Vignogna filed this mechanic's lien as president of "vibar Construction, Inc.", a company that does not exist (R49). The mechanic's lien was filed identifying Fawn Builders Inc. as the owner of Lot 215, when George Vignogna knew and should have known that Nicholas Rigano was the owner of Lot 215; the deed was executed in George Vignogna's presence in the office of George Vignogna's attorney on February 14, 2007 (R202). Furthermore, George Vignogna knew that Nick Rigano was the owner, by virtue of the action George Vignogna had instituted against Nicholas Rigano before he filed the mechanic's lien (R257-267). George Vignogna filed a mechanic's lien alleging that $302,508.36 was owed to "vibar Construction, Inc." (R46). In fact, the "agreed price and values" set forth in the mechanic's lien total only $260,120.02." (R46). Contrary to the claims of the appellant that this is a mere typographical error, the amount stated on the lien is wilfully exaggerated; appellant's claim for professional services totaling $106,895.02 is in fact for three liens filed by Annicelli Engineering, P.C. against Lots 214, 215 and 216 on White Birch Lane (R357-365) . George Vignogna and "vibar Construction, Inc." filed a mechanic's lien for services rendered by John Annicelli on two lots totally unrelated to Nick Rigano's building lot. One Annicelli Engineering, P.C. lien (for 13 $29,718.34) was filed against the Lot 214 (R357-359) which must be dedicated and deeded to the conservation group (R205) The second Annicelli Engineering, P.C. lien (for $42,388.34) was filed against Lot 216, which is owned by George Vignogna! (R360- 362) The notice of mechanic's lien falsely states that the date of the last work performed and materials furnished was "December 15, 2010" (R47) a date which had not yet occurred. It should be noted that the Town of Pound Ridge had determined that the road (for which the "Vibar Construction, Inc." lien was filed) was completed by october 10, 2007 because the entirety of the bond was returned to George Vignogna by that date (R217-218; R220). On April 7, 2010, Nick Rigano entered into a contract to sell Lot 215 at White Birch Lane to White Birch Development LLC for the sum of $400,000.00 (R151-160). After the contract was signed, Nick Rigano was served with a copy of the mechanic's lien at issue in this case (R46-48). Thereupon, Nicholas Rigano brought a special proceeding to vacate the mechanic's lien (R37-39). Thereafter, Vibar Construction Corp. brought an application to amend the mechanic's lien, pursuant to Lien Law, section 12-A. In the underlying proceeding, Hon. Nicholas Colabella entered orders granting Nick Rigano's petition and dismissed 14 "vibar Construction, Inc.'s" lien (R12-14). On the same date, Justice Colabella denied Vibar Construction Corp.'s application to amend the mechanic's lien herein (R21-22). In his decision Justice Colabella ruled: "While a failure to state the true owner or a misdescription of the true owner will not affect the validity of a notice of lien (see Lien Law [9] [7] ), it has been held, at least in the Second Department, that a misidentification of the true owner is a jurisdictional defect which cannot be cured by amendment nunc pro tunc." (Citing Second Department cases.) Justice Colabella further ruled: "as discussed above, the mistake as to the owner was only one of several defects in the notice. Under the circumstances, the notice was not in substantial compliance with the requirements of the Lien Law and, therefore, is not subject to amendment (Empire Pile Driving Corp. v. Rylan Sanitary Serv., 32 AD2d 563; see also, Sullivan Contracting, Inc. v. Turner Construction Co., 60 AD3d 1315)." Notices of appeals on behalf of "Vibar Construction, Inc." and Vibar Construction Corp. were served. By order of the Appellate Division dated August 8, 2012, the appeals in these two matters were consolidated (R5-6). By order dated September 11, 2013, the Appellant Division Second Department affirmed both decisions of Justice Collabella (CA-2 and CA-3) . The Second Department addressed only one of the two legal grounds given by trial term to vacate the mechanic's lien. The Appellate Division ruled: 15 "While a failure to state the true owner or contractor or a misdescription of the true owner will not affect the validity of a notice of lien (Lien Law §9[7]), a misidentification of the true owner is a jurisdictional defect which cannot be cured by an amendment nunc pro tunc (Matter of Tri- Quality Mech. Corp. v. Chappastream Corp., 138 AD2d 610, 611; see Gates & Co. v. National Fair & Exposition Assn., 225 NY 142, 156; Tri-State Sol- Aire Corp. v. Lakeville Pace Mech, 221 AD2d 519; Matter of Kleet Lbr. Co. [DMC Mgt.], 197 AD2d 576; DiPaolo v. H.B.M. Enters., 95 AD2d 794). Here the notice of lien completely misidentified the true owner of the subject premises as of the date it was filed. Thus, the mechanic's lien was jurisdictionally defective and was properly discharged by the Supreme Court. In light of this determination, the parties' remaining contentions have been rendered academic." By order of December 12, 2013 appellant was granted permission by this court to appeal to the Court of Appeals (CA- 1) . 16 The proceedings in the Courts Below and the Proceedings Herein The appellant, and its counsel have made numerous claims both in the courts below and in this court which are refuted by the record. Any attempt to address all of these inaccuracies would divert the court from addressing the real issue on this appeal. Nonetheless, certain claims must be addressed as they directly impact the issue presented by appellant on appeal. First, appellant repeatedly claims that he did not know that Nick Rigano was the owner of Lot 215, and that Nick Rigano had conveyed the property from Fawn Builders, Inc. to Nick Rigano in an attempt to frustrate Mr. Vignogna and the appellant. The amended complaint in the lawsuit commenced by appellant and George Vignogna two years before appellant filed the mechanic's lien is proof of appellant's knowledge that Nick Rigano owned Lot 215 (R257-266). Furthermore, appellant knew that Nick Rigano was the owner of Lot 215 because appellant's lawyer, Michael Sirignano, Esq. prepared the deeds that were executed on February 14, 2007. The real estate transfer tax return for the conveyance of Lot 216 from Nick Rigano to Vibar Construction Corp. (R221-225) clearly identifies Michael Sirignano to be the attorney for the purchaser, Vibar Construction Corp. (R225). 17 A second glaring distortion of the record, set forth before the Appellate Division and repeated before this court is that Ray Lienau and Robert Kelly produced affidavits for George Vignogna. (Brief for Appellant at page 26.) Ray Lienau and Robert Kelly never produced affidavits for George Vignogna (Rl-376). They rebut statements Vignogna made in an affidavit (R292-293, R294-295). The appellant further represents in its Section 500.13(a) statement there is no other related litigation between the parties. Indeed, the acrimonious litigation of the appellant and George Vignogna against Nick Rigano and the respondent, Fawn Builders, Inc. which is still pending in Supreme Court westchester County under Index No. 4439 of 2008 (and which has been pending since February 29, 2008) establishes that neither Nick Rigano nor Fawn Builders consented to any construction at White Birch Lane within eight months of the filing of the notice of mechanic's lien. 18 POINT I THE NOTICE OF MECHANIC'S LIEN IS MATERIALLY, AND FATALLY DEFECTIVE On or about March 23, 2010, appellant filed a mechanic's lien in the office of the Westchester County Clerk, which is the subject of this appeal. As set forth herein below, the notice of mechanic's lien herein is defective on its face as to virtually all of the requirements of the Lien Law and is materially defective for five or six separate reasons. Lien Law Section 9 sets forth the statutory requirements for the contents of a notice of lien. The statute, in relevant part, provides: "The notice of lien shall state: 1. The name and residence of the lienor; and if the lienor is a. . corporation, the business address of such. . corporation, the names and partners and principal place of business . I-a The name and address of the lienor's attorney, if any. 2. The name of the owner of the real property against whose interest therein a lien is claimed, and the interest of the owner as far as known to the lienor. 3. The name of the person by whom the lienor was employed, or to whom he furnished . materials; or, if the lienor is a contractor . . the person with whom the contract was made. 4. The labor performed or materials furnished and the agreed price or value thereof . 5. The amount unpaid to the lienor for such labor or materials. 19 6. The time when the first and last items of work were performed and materials were furnished. 7. The property subject to the lien with description thereof sufficient for identification; A failure to state the name of the true owner or contractor, or a misdescription of the true owner, shall not affect the validity of the lien. The notice must be verified by the lienor or his agent, to the effect that the statements therein contained are true to his knowledge except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true." The interpretation of paragraph 7 in Lien Law Section 9 has led to a divergence of opinion in the First and Second Departments. Compare P.M. Contr. Co. v. 32AA Assoc., 4 AD3d 198 (1st Dept. 2004) with Matter of Kleet Lbr. Co. (DMC Mgt.), 197 AD2d 576 (2 nd Dept. 1993); Tri-State Sol-Aire Corp. v. Lakeville Pace Mech., Inc. 221 AD2d 519 (2nd Dept. 1995). It is respectfully submitted that the Second Department has followed the rule laid down by this Court; see Gates & Co. v. National Fair & Exposition Assn., 225 NY 142 (1919). Turning to the notice of mechanic's lien herein, the following defects are noted. First, the mechanic's lien identifies the lienor to be "vibar Construction, Inc." (R46). "vibar Construction, Inc." does not exist (R49). A certificate under seal issued by the New York State Department of State certifies that "Vibar Construction, Inc." does not exist and has no authority to do 20 business in the State of New York (R49). This defect, standing alone would probably not preclude an application by appellant to amend his mechanic's lien. See Covino v. Alside Aluminum Supply Co., 42 AD2d 77 (4 th Dept. 1973); Homemakers, Inc. of Long Island v. Williams, 100 AD2d 505 (200 Dept. 1984); see A.A. Sutain, Ltd. v. Montgomery Ward & Co., 22 AD2d 607 (1st Dept. 1965). However, this error, in light of and together with the other material defects, preclude an amendment. See Matter of Fibernet Telecom Group v. East Coast Opt. Servs., 195 Misc. 2d 461. Second, the notice of mechanic's lien states that Fawn Builders, Inc. is the owner of the real property liened, described to be Section 3 Block 9031 Lot 215 on White Birch Lane in Pound Ridge, New York (R46-47). The owner of the property at the time of the filing of the lien was Nick Rigano. property owner is currently Nick Rigano's estate.) (The Where the notice of lien does not merely mis-describe the true owner of property, but completely misidentifies him or her, the notice is jurisdictionally defective and void. Matter of Kleet Lbr. Co. (DMC Mgt.), 197 AD2d 576 (2nd Dept. 1993); a misidentification of the true owner cannot be cured by amendment nunc pro tunc; Tri-State Sol-Aire Corp. v. Lakeville Pace Mech., Inc., 221 AD2d 519 (2nd Dept. 1995); Matter of Tri-Quality Mech. Corp. v. Chappastream Corp., 138 AD2d 610 (2 nd Dept. 1988). 21 In one attempt to distinguish these cases, appellant claims in its papers that it did not know Fawn Builders, Inc. had transferred the property to Nick Rigano at the time it filed the mechanic's lien (R82). George Vignogna claims that Michael Sirignano, Esq. represented Nick Rigano on February 14, 2007 and not "vibar Construction, Inc." (R82). Both statements by George Vignogna are false. On May 14, 2008 George Vignogna and "vibar Construction, Inc." submitted an amended complaint in the Supreme Court Westchester County which alleges that Nick Rigano was the owner of the property upon which "vibar Construction, Inc." has now imposed its mechanic's lien (R257-265). The affidavit of George Vignogna in "vibar Construction, Inc. v. Konetchy" (R284- 289) establishes that Michael Sirignano, Esq. was George Vignogna's attorney (R289). The closing documents executed by George Vignogna state that Mr. Sirignano was Mr. Vignogna's attorney (R225). George Vignogna was personally present at Michael Sirignano, Esq.'s office when his lawyer, Michael Sirignano, handed to Nick Rigano the deed recorded by Mr. Sirignano whereby Fawn Builders, Inc. transferred Lot 215 to Nick Rigano (R43-45). The appellant also argues that the court should apply the First Department Rule as expressed in P.M. Contr. Co. v. 32AA Assoc., 4 AD3d 198 (1st Dept. 2004) rather than the Second Department Rule set forth above. The appellant argues "the First 22 Judicial Department decision also recognizes the reality that, in filing a Notice of Mechanic's Lien, a lienor often proceeding without the benefit of counsel, may not have had a full opportunity to ascertain who is the true owner of the subject property, and pressed to comply with the short statute of limitations contained in Lien Law Section 10, files a mechanic's lien which is not a model of precision." (Brief for Appellant, pages 48-49) Although the notice of mechanic's lien herein states: "the name and address of the lienor's attorney, if any, is: N/A" (R46) , the appellant was in fact represented by counsel. The notice of mechanic's lien is notarized by Michael F.X. Ryan, Esq. (R48) , the appellant's counsel! Mr. Ryan is the attorney for both "vibar Construction, Inc." and George Vignogna in the pending lawsuit commenced two years earlier against Fawn Builders, Inc. and Nick Rigano (R238, R239-245, R247, R257, R258- 264, R265, R266). Based on that litigation, both Mr. Ryan and the appellant knew that Nick Rigano owned the lot against which the notice of mechanic's lien was filed. Indeed, the notice of mechanic's lien herein was filed over two years after the last consent of any kind was given by Nick Rigano or Fawn Builders, Inc. to any work, labor and services performed by the appellant. The notice of mechanic's lien herein was filed as part of a 23. litigation strategy. The principal (George Vignogna) of the appellant knew that Nick Rigano was dying (R292). Michael F.X. Ryan, Esq. is also the individual who notarized all of the notices of mechanic's lien filed by Annicelli Engineering, P.C. (R358, R361, R364). Accordingly, both Mr. Ryan and appellant knew that "vibar Construction, Inc.'s" mechanic's lien contained a claim for professional fees supplied by Annicelli Engineering, P.C. to property owned by George Vignogna and property to be conveyed to the conservation group. These are two more reasons why the mechanic's lien misidentified the owner(s) of the property to be liened. It is undoubtedly true that the Lien Law is intended to protect hard working laborers and material men to insure they are paid for their services. The Lien Law is not intended, however, to be exploited as a litigation stratagem where any false claims can be included. Furthermore, the Second Department Rule accurately reflects the rule already established by the Court of Appeals. In Gates & Co. v. National Fair & Exposition Assn., supra the Court ruled with respect to several mechanic'S liens. The lien filed against "Empire City Trotting Club was sustained, even though the owner had changed its name to Empire City Racing Association. The Court ruled that this was merely a misdescription of the true owner. At the same time, this Court ruled: 24 "The liens of the Yonkers Lumber Company and Lawrence Brothers cannot be sustained. James Butler, named as the owner of the real property described in each of said liens, is an officer and stockholder of the racing association and actively connected with its management but he has no personal interest in the real property as an owner. A lien is not invalid simply by reason of a misdescription of the true owner if there is a substantial compliance with the statute. Where, however, the person named in the alleged notice of a lien as the owner of the real property against whose interest therein a lien is claimed is not an owner of any interest therein which is defined in the statute, there is a complete failure to comply with the directions thereof and the alleged lien is ineffectual and worthless." Gates & Co. v. National Fair & Exposition Assn., supra at 156. Similarly, in Niagara venture v. Sicoli & Massaro, Inc., 77 NY2d 175 (1990) a mechanic's lien against Niagara Venture was discharged as to the portion of the improved property which had been transferred to the City of Niagara Falls. Third, the notice of mechanic's lien is defective on its face with respect to the amount of the claim. The notice of mechanic's lien states in pertinent part: "The material furnished was as follows: item 4, blacktop, fill, top soil and pipe. The materials actually manufactured for but not delivered to the real property are N/A. The agreed price and value of the labor performed is $36,725.00. The agreed price and value of the material furnished is $116,500.00. The agreed price and value of the material actually manufactured for but not delivered to the real property is N/A. The agreed fee for professional service is $106,895.02. Total agreed price and value $302,508.36." (R46) 25 The sum total of the "value of labor" ($36,725.00) (R46) , the "materials furnished" ($116,500.00) (R46) and the "professional service" ($106,895.02) (R46) equals $260,120.02. Despite this fact, the notice of mechanic's lien claims that the total agreed price and value is $302,508.36. The appellant claims that this discrepancy is a mere typographical error. It is not. The amount stated for professional service is listed as $106,895.02, purportedly for professional services to "construct, excavate and build a road and drainage" as set forth in paragraph 4 of the notice of mechanic's lien (R46). In fact, the $106,895.02 actually represents the total of three separate mechanic's liens filed by Annicelli Engineering, P.C. against three parcels of property on May 14, 2007 (R357-365). On May 14, 2007, Annicelli Engineering, P.C. filed a $29,718.34 mechanic's lien against section 3 Block 9031 Lot 214 (R357). This is the lot which must be transferred to the conservation group pursuant to the White Birch Lane subdivision approval (R205). On the same date, Annicelli Engineering, P.C. filed a $42,388.34 lien against Section 3 Block 9031 Lot 216 in the Town of Pound Ridge, New York. This is a lot in the White Birch Lane subdivision owned by George Vignogna (R360). On May 14, 2007, Annicelli Engineering, P.C. filed a $34,788.34 mechanic's lien against Section 3 Block 9031 Lot 215 in the Town of Pound Ridge 26 (R363). This lot, stated to be owned by Fawn Builders, Inc. is the property of Nick Rigano (and now his estate) . There is no record in the office of the Westchester County Clerk that any of these mechanic's liens were ever served by Annicelli Engineering, P.C. on any of the owners (R342) event, these liens were never renewed and expired. In any The point is "vibar Construction, Inc." filed the mechanic's lien herein based, in part, upon professional services rendered to a lot (Lot 216) owned by George Vignogna (R360-362) and a separate lot (Lot 214) which must be deeded to the conservation group. Therefore, the misstatement of the amount of the lien is not a mere "typographical error." If there is a wilful exaggeration in the amount of the lien as filed, the entire lien is forfeited. Lien Law Section 39; see Goodman v. Del-Sa-Co Foods, 15 NY2d 191 (1965); see also Aeschlimann v. Presbyterian Hosp., 165 NY 296 (1901). Although a finding of wilfulness is normally made on the trial of an action/proceeding to enforce the lien, (see Matter of Lustbader Contr. Corp., 144 Misc. 875), the amount stated on the lien herein is facially defective ($260,120.36 vis a vis $302,508.36) and is wilfully exaggerated and materially defective in the context of this case. Fourth, the notice of mechanic's lien states: 27 "The amount unpaid to the Lienor for said labor performed is $0. The amount unpaid to the lienor(s) for said material furnished is $0. The amount unpaid to lienor(s) for material actually mfd. For but not deliver to the real property is $ N/A. Total amount unpaid $ N/A. Total amount claimed for which this lien is filed is claimed for which this lien is filed is $302,508.36." (R47) The notice of mechanic's lien is self contradictory, claiming that nothing is owed for material and labor while also stating the incorrect amount $302,508.36 (instead of $260,120.36) which incorporates and includes professional fees performed by Annicelli Engineering, P.C. on George Vignogna's own lot. The notice is defective. See Toop v. Smith, 181 NY 283 (1905) Fifth, the notice of mechanic's lien states: "The time when the last item of work was performed was: December 15, 2010 The time when the last item of material was furnished was: December 15, 2010." (R-47) December 15, 2010 had not transpired as of March 23, 2010. Once again, appellant claims that this is a mere "typographical error". It is not a mere typographical error. The mechanic's lien herein is stated to be for the following purpose: "4. - the labor performed was as follows: construct, excavate and build road and drainage". (R46) 28 Appellant filed its mechanic's lien pertaining to the construction of White Birch Lane. The construction on White Birch Lane was commenced on or about May 1, 2004. The construction of White Birch Lane was completed by October 10, 2007 (R217-218). On that date the entire $158,600.00 performance bond required by the Town of Pound Ridge was released to George Vignogna. The Town of Pound Ridge, based upon the statements of George Vignogna and his partner John P. Annicelli approved the bond of $158,600.00 on the understanding that it was going to cost $130,000.00 to build the roadway (R219). Any notice of mechanic's lien must be filed within eight (8) months from the completion of the last work or services; Lien Law, Section 10. Because appellant claims he performed work with respect to a residential building lot relating to real property to be improved with a single family dwelling, appellant was required to file his notice of mechanic's lien within four months of the completion of the agreed upon services (Lien Law, Section 10). A failure to file the notice within the statutory period is fatal to the lien. See Matter of Perrin v. Stempinski Realty Corp., 15 AD2d 48 (1st Dept. 1961); appeal dismissed 11 NY2d 931 (1962). See also Delany v. Carpenter, 62 Misc. 416. In this case, George Vignogna and appellant filed a mechanic's lien more than two years after George Vignogna received back the full $158,600.00 that was required by the Town of Pound Ridge to build 29 White Birch Lane. Equally important, the mechanic's lien herein was filed more than two (2) years after appellant and George Vignogna commenced litigation against Fawn Builders, Inc. and more than one year and ten months after appellant and George Vignogna had commenced litigation against Fawn Builders, Inc. and Nicholas Rigano (R257) for the work, labor and services which are the subject of this lien (R258-265). The Lien Law provides that a mechanic's lien can be filed only where the owner of the property has consented to the improvement. Lien Law section 3 provides in pertinent part: "A contractor ... who performs labor or furnishes material for the improvement of real property with the consent or at the request of the owner thereof ... shall have a lien for the principle and interest on the value or the agreed price of such labor ... from the time of filing a notice of lien as prescribed in this chapter." (emphasis added) The consent is the sine qua non for a mechanic's lien, and if no consent is shown, there is no right to a mechanic's lien. See Delany & Co. v. Duvoli, 278 NY 328 (1938); GCMD Ironworks, Inc. v. GJF Const. Corp., 292 AD2d 495 (2 nd Dept. 2002). "The consent required by this section is not a mere acquiescence by the owner to improvements . there must be some affirmative act by the owner." Delany & Co. v. Duvoli, 30 supra at 331. See also Beck v. catholic University, 172 NY 387 (1902) . In this case, appellant and George Vignogna received the performance bond funds back on the completion of white Birch Lane in October 2007. "vibar Construction, Inc." and George Vignogna brought a lawsuit against Fawn Builders, Inc. and Nicholas Rigano in May 2008. The respondents denied liability to "vibar Construction, Inc." and George Vignogna in May 2008 (R48-251, R267) (SRl-3) . Neither Fawn Builders, Inc. nor Nicholas Rigano consented to any improvement to Lot 215 after "vibar Construction, Inc." and George Vignogna commenced their lawsuit against the respondents. Accordingly, the date when the last work was furnished and the date when the last materials were furnished is critically important to this mechanic's lien and the designation of the date "December 15, 2010" as the date when the last work and materials were furnished and performed is materially defective. See Matter of Piston v. Lincoln Supply Co., 37 Misc. 2d 1003; see also Mahley v. German Bank of Buffalo, 174 NY 499 (1903). Lien Law Section 23 provides that the provisions of the article are to be construed liberally to secure the beneficial interests and purposes thereof. Nonetheless: 31 "The provisions of the statute that the law shall be construed liberally does not authorize the courts to entirely dispense with what the statute says the notice shall contain." Mahley v. German Bank of Buffalo, supra at SOl. The appellant argues on appeal that, "the notice of mechanic's lien correctly describes the property subject to the mechanic's lien, setting forth the street address and the tax map number of the property." (Brief for Appellant, page 42) In fact, the notice of mechanic's lien does not set forth the correct tax map designation. The correct tax map designation is "Section 3 Block 9031 Lot 21S.1" (R43-4S, R44). The appellant designated the old tax map designation, before the lot line changes were effected. (This sixth defect was not raised at trial term.) The notice of mechanic's lien herein is materially defective on its face in five critical ways and was properly discharged of record. Empire Pile Driving Corp. v. Hylan Sanitary Service, Inc., 32 AD2d S63 (2M Dept. 1969). See also Sullivan Contracting, Inc. v. Turner Construction Corp., 60 AD3d 131S (4 th • Dept. 2009); Mahley v. German Bank of Buffalo, supra. Gates & Co. v. National Fair & Exposition Assn., supra. 32 CONCLUSION The order of the Appellate Division should be affirmed. To: Michael F.X. Ryan, Esq. 3005 East Main Street Cortlandt Manor, NY 10567 (914) 739-0002 33 Respectfully submitted, Deren, Genett & Macreery, P.C. Attorney for Respondents By: ___ ),,~~ C- John Brian Macreery Office and Post Office Address: 28 Edgemont Road Katonah, NY 10536 (914) 232-8174