AKI Renovations Grp. v. 38 PPSW.
| Decision Date | 19 July 2022 |
| Docket Number | Index No. 501756/2022 |
| Citation | 2022 NY Slip Op 32412 (U) |
| Court | New York Supreme Court |
| Parties | AKI RENOVATIONS GROUP, INC., Plaintiff, v. 38 PPSW., LLC, 82 CLINTON AVE, LLC, 109 MONTAGUS, LLC, 157 5 AVE, LLC, 238 8 ST, LLC, 346 CLINTON, LLC, 365 5 AVE LLC, 469-473 4 ST, LLC, U.S. SPECIALTY INSURANCE COMPANY, R&T GRANITE WORKS, INC., BIG APPLE WIRING CORP., AP PLUMBING & HVAC LLC, AKI DECOR, INC., AKI CABINETS, INC., GREGORY FOURNIER., FREDERIC LECAO and JOHN DOE Nos. 1 THROUGH 10, Defendants, 38 PPSW, LLC, 82 CLINTON AVE, LLC, 109 MONTAGUE, LLC, 157 5 AVE, LLC, 238 8 ST, LLC, 46 CLINTON, LLC, 365 5 AVE LLC, 469-473 4 ST, LLC, Counterclaim Plaintiffs, v. HALIL TODIC, Counterclaim Defendant, |
PRESENT; HON. LEON RUCHELSMAN JUDGE
DECISION AND ORDER
The plaintiff and counterclaim defendant have moved seeking to dismiss the ninth and tenth -counterclaims filed by the defendants. The defendants oppose the motion. Papers were submitted by the parties and arguments held. After hearing all the arguments this court, now makes the following determination.
The plaintiff Aki Renovations Group Inc., was a general contractor hired to do construction work at eight locations owned and managed by the defendants. Aki was terminated from the projects and filed mechanic's liens for alleged unpaid fees. Aki further Instituted this lawsuit alleging breach of contract quasi-contract and to: foreclose upon mechanic's liens filed. The defendants answered end asserted various counterclaims. The plaintiff and counterclaim defendant Halil To/die have moved seeking to dismiss two counterclaims: filed, namely for the willful exaggeration of the mechanic's lien (ninth counterclaim). and for a diversion of the trust fund (tenth counterclaim).. They argue the willful exaggeration, claim is .unsupported and in. any event such claim cannot be pursued against Todic. Further, they assert the defendant's have no standing to challenge such liens. The defendants assent there is no basis to dismiss those counterclaims.
Conclusions of law
It is well settled that upon a motion to dismiss the court must determine, accepting the allegations of the counterclaims as true, whether the party can succeed upon any reasonable view of those facts (Strujan. v. Kaufman & Kahn, LLP, 168 A.D.3d 1114,- 93 N.Y.S.3d 334 [2d Dept., 2019];).. Further, all the allegations in the counterclaims are deemed true and all reasonable inferences may be: drawn in favor of the party that filed such claims (Federal National Mortgage Association v. Grossman, 205 A.D.3d 770, 165 N.Y.S.2d 892 [2d Dept., 2022]). Whether the counterclaims will later survive, a motion for summary judgment, or whether the party will ultimately be able to prove its claims, of course, plays no part, in the determination of a pre-discovery CPLR §3211 motion to dismiss (see, Moskowitz v. Masliansky, 198 A.D.3d 637, 155 N.Y.S.3d 414 [2021]) .
The defendants argue that Todie, by filing an exaggerated mechanic's lien, committed a tort and thus, notwithstanding his role: as a corporate:office can be held person-ally liable. Todic argues- that no. such inability can attach, especially where Todio, in a personal capacity, did not maintain any contractual relationship with any of. the defendants.
It is well settled that while a corporate officer may not be held liable for a corporation''s wrongs merely because such person is an officer, the individual .may be liable for tort in an, individual capacity even without piercing the corporate veil (see, Ramos v. 24 Cincinatus Corp., 104 A.D.3d 619, 961 N.Y.S.2d 465 [1st Dept., 2013]}. In Neptune Estates. LLC, v. Big Poll & Son Construction LLC, 39 .Misc3d 649, 961 N.Y.S.2d 896 [Supreme Court Kings County 2013] the court enumerated seven causes of action that one could pursue upon the filing of a false Mechanic's Lien. The court explained;that " (id). Clearly, the above available causes of action are all torts. Indeed, in Greenway Plaza Office Park-1 LLC v. Metro Construction Services Inc., 4 A.D.3d 328, 771 N.Y.S.2d 532 [2d Dept,, 2004] the court specifically permitted a tort action against a corporate officer who willfully exaggerated a mechanic's lien. Further, lower courts have likewise concluded that the willful exaggeration of a mechanic's lien is a tort (see, Power Air Conditioning Corp., v. Batirst, 229 LLC, 2017 WL 1375262 [Supreme Court New York County 2017], Honest & Quality Corp., v. 21214 Northern LLC, 2020 WL 2790716 [Supreme' Court New York County 2020]). Therefore, the motion seeking to. dismiss Todic merely because he is a corporate officer is denied. Todic may be tortuously personally liable for filing the lien.
Concerning the substantive aspects related to the liens, it is well settled that whether the lien amount contained in a mechanic's lien, is exaggerated is generally a question of fact (Executive Towers at Lido LLC v. Metro Construction Services, 303 A.D.2d 545, 756 N.Y.S.2d 461 [2d Dept., 2003]), As the court stated in Aaron v. Great Bay Contracting Inc., 290 A.D.2d 326, 736 N.Y.S.2d 359 [1st Dept., 2002] "the validity of the lien plainly turns on a dispute as to whether respondent has completed the work required by the contract, and, accordingly, must await trial of the foreclosure action" (id). Thus, a determination that a lien was willfully exaggerated generally...
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