Diamond Waterproofing Systems, Inc. v. WP Owners Corp., 2007 NY Slip Op 30085(U) (N.Y. Sup. Ct. 2/27/2007)

Decision Date27 February 2007
Docket Number0000616.,Motion Cal. No.: 29.
Citation2007 NY Slip Op 30085
PartiesDIAMOND WATERPROOFING SYSTEMS, INC., Plaintiff, v. WP OWNERS CORP; FRANCIS A. LEE COMPANY, A CORPORATION FORMERLY KNOWN AS FRANCIS A. LEE EXTERIOR RESTORATION CORP., and SCALCO CONSTRUCTION CORP. A JOINT VENTURE; PEOPLE OF THE STATE OF NEW YORK and CITY OF NEW YORK Defendants.
CourtNew York Supreme Court

ORIN R. KITZES, Judge

Upon the foregoing papers it is ordered that the motions by defendant WP Owners Corp. (hereinafter, "WP") for an order pursuant to CPLR § 3211 (a)(1) & (7), dismissing plaintiff's complaint as against it; and cross-motion by defendant Scalco Construction Corp. (hereinafter, " Scalco") for an order pursuant to CPLR § 3211 (a)(1) & (7), dismissing plaintiff's complaint as against it and dismissing the second cross-claim by WP are decided as follows:

This is an action to foreclose a Mechanics Lien on a private improvement, stemming from work plaintiff performed for the defendants at the premises located at 213-05 75th Avenue, Bayside New York. Plaintiff performed labor and furnished material during the course of work that included the installation of sand, cement, paint, and waterproofing and claims that it has not received payment for this work. The complaint contains one cause of action, which is to foreclose a mechanic's lien. According to the complaint, the lien was filed and docketed on March 15, 2001 in the Office of the Clerk of Queens County. Plaintiff claims that the lien was extended by filing an extension on February 25, 2002, and then by three successive orders of the Court, dated February 18, 2003, February 9, 2004, and January 19, 2005. This action was commenced on January 10, 2006.

Defendant Scalco now seeks an order dismissing the complaint pursuant to CPLR 3211(a)(1) based upon the invalidity of the lien that plaintiff seeks to foreclose. According to defendant Scalco, the lien which plaintiff seeks to foreclose became void as of the end of the second court-ordered extension of the lien and was not properly extended by the third courtordered extension. Plaintiff opposes this motion, claiming that the court was authorized to extend the lien a third time.

CPLR 3211 (a) (1) provides that "(a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: 1. a defense is founded on documentary evidence . . . " In order to prevail on a CPLR 3211(a)(1) motion, the documentary evidence submitted "must be such that it resolves all the factual issues as a matter of law and conclusively and definitively disposes of the plaintiff s claim . . . " (Fernandez v. Cigna Property and Casualty Insurance Company, 188 AD2d 700 (3rd Dept 1992.) Bronxville Knolls, Inc. v. Webster Town Center Partnership, 221 AD2d 248 (1st Dept 1995.) The court orders and other signed documents submitted by defendant Scalco on this motion qualify as "documentary evidence" within the meaning of CPLR 3211(a)(1). This evidence shows that the lien was extended three times after its initial extension.

Pursuant to Lien Law § 17, a mechanics' lien terminates one year after the notice of lien is filed, unless: (1) both an action is commenced to foreclose the lien and a notice of pendency is duly filed (with county clerk, in case of private improvements, and with applicable public official, in case of public improvements); or (2) in the case of property other than a single-family dwelling, an extension of the lien is filed with the county clerk within such one-year period. Such extension is effective for up to one year. A mechanics' lien may also be continued by court order for up to one year at a time in each of two successive years. Unless such action is commenced, and a notice of pendency...

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