New York Family Law Blog
This is a family case commenced on February 25, 2005 by the filing of a Summons and Complaint in the Supreme Court of Nassau County setting forth two causes of action against the Defendant sounding in breach of contract and an account stated, and a third cause of action against all Defendants seeking to foreclose a mechanics lien filed by the Plaintiff on a real property. The Plaintiff filed a Notice of Pendency with the Nassau County Clerk at the same time.
Legal counsel said that the issue was joined with the Defendants on or about September 26, 2005. None of the other Defendants have appeared or answered herein; and, the Plaintiff advises that a money judgment has been submitted to the Clerk of the Court as to the Defendant. The Plaintiff originally moved for summary judgment on its third cause of action in the Supreme Court of Nassau County.
The Defendants opposed the motion. Following submission of the motion this matter was transferred to the District Court of Nassau County, pursuant to CPLR § 325(d). The papers previously submitted, both for and against the Plaintiff’s motion, have now been submitted to this court.
Summary judgment is a drastic remedy which should not be granted where there is any doubt as to the existence of a triable issue of fact. To prevail, the movants must first make a showing of entitlement to judgment, as a matter of law, a case tendering evidentiary proof in admissible form. It is only thereafter incumbent upon the party opposing summary judgment to “demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do.” The movant’s failure to make such a showing, regardless of the sufficiency of opposing papers, mandates the denial of a summary judgment motion.
The Plaintiff alleges that the Defendants, are the owners of certain real property, improved by a single family home. The Plaintiff further alleges that it supplied materials to the Defendant, who had been hired by the Defendants, to do work on their house. The Plaintiff claims that the materials provided to the Defendant had a value of $19,858.06, for which the Plaintiff has not been paid.
It is alleged that on October 10, 2003, within four months of the last materials being supplied to Reid, the Plaintiff filed a Notice Under Mechanic’s Lien Law with the Nassau County Clerk regarding the outstanding balance of $19,858.06.
It is undisputed that the Plaintiff filed a Notice of Mechanic’s Lien in the form required by Lien Law § 9. It is likewise undisputed that the Plaintiff served a copy of this notice in the time and manner prescribed by Lien Law § 11. It is not, however, altogether clear that the Plaintiff timely filed its notice of lien, “at any time during the furnishing of materials, or, within four months after the final furnishing of materials, dating from the last materials furnished” as required by Lien Law § 10; and, more importantly, the Plaintiff’s proof demonstrates that the lien was no longer viable at the time this action was commenced.
While the Plaintiff’s Notice Under Mechanic’s Lien Law states that the last item of material was furnished on June 15, 2003, the Plaintiff has not submitted any proof to that effect. Having improperly submitted the alleged invoices and/or delivery tickets relating to the subject material only as part of its reply, denying the Defendant the opportunity to comment on same, these documents are not to be considered by the court.
Additionally, these documents are not submitted in admissible form. Simply annexing documents to the moving papers, without a proper evidentiary foundation is inadequate. The Plaintiff, however, has made no effort to lay any sort of evidentiary foundation for the admission and consideration of these documents. Nevertheless, the court cannot help but notice that, except for one invoice which shows a delivery date of May 1, 2003, none of the other documents indicate when the last item of material was delivered. At the very least, even if these documents were to be considered by the court, they raise questions of fact regarding the timely filing and validity of the Plaintiff’s lien, requiring the denial of the Plaintiff’s motion.
The above notwithstanding, even more problematic for the Plaintiff is the fact that the Plaintiff’s own proof demonstrates that its mechanic’s lien terminated by operation of law prior to the commencement of this action.
Lien Law § 17 provides, in pertinent part, No lien specified in this article shall be a lien for a longer period than one year after the notice of lien has been filed, unless within that time an action is commenced to foreclose the lien, and a notice of the pendency of such action, whether in a court of record or in a court not of record, is filed with the county clerk of the county in which the notice of lien is filed. A lien on real property improved or to be improved with a single family dwelling may only be extended by an order of a court of record, or a judge or justice thereof.
Lien Law § 19 similarly provides, in pertinent part:
(2) By failure to begin an action to foreclose such lien or to secure an order continuing it, within one year from the time of filing the notice of lien, unless an action be begun within the same period to foreclose a mortgage or another mechanic’s lien upon the same property or any part thereof and a notice of pendency of such action is filed according to law. As previously indicated, the Plaintiff filed its Notice Under Mechanic’s Lien Law with the Nassau County Clerk on October 13, 2003.
The Plaintiff having failed to commence an action to foreclose the lien and file a notice of pendency within one year of filing the lien, obtain an order extending the lien or be named as a defendant in an action to foreclose another lien, the Plaintiff’s lien lapsed as a matter of law one year after its filing and may not be enforced. The Plaintiff’s mechanic’s lien having expired by operation of law, the Defendants, may nevertheless be found liable to the Plaintiff only if it is demonstrated that they either agreed to pay for the materials provided by the Plaintiff or guaranteed Reid’s performance to pay for the materials.
The mere fact that the Defendants consented to the improvements performed by defendant does not render them liable to the Plaintiff, whose sole remedy lies against Defendant. The Plaintiff neither alleges, nor sets forth any evidence, that the Defendants had any contractual relationship with the Plaintiff, ever agreed to provide payment for the materials furnished by the Plaintiff or guaranteed Reid’s performance to pay for the materials.
Based upon all of the foregoing, the Plaintiff’s motion for summary judgment is denied.
CPLR § 3212(b) permits the court to search the record and grant summary judgment to the Defendant, where warranted, even though such relief was not requested. Given the fact that the action is predicated upon the validity, or invalidity, of the Plaintiff’s lien, and the Plaintiff’s own proof having demonstrated that the Plaintiff’s lien had lapsed prior to the commencement of this action, there is no surprise or prejudice to the Plaintiff.
Given the facts presented by the Plaintiff, it is apparent that there is no basis upon which the Plaintiff may ultimately prevail against the Defendants, warranting the granting of summary judgment in their favor and dismissing the Complaint as to these Defendants.
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