ICDIA Corp. v. Visaggi

• Court: New York Supreme Court — Appellate Division
• Citation: ICDIA Corp. v. Visaggi, 2016 NY Slip Op 336, 135 A.D.3d 820, 24 N.Y.S.3d 349 (N.Y. App. Div. 2016)
• Decision Date: 20 January 2016
• Docket Number: 2013-08640,Index No. 9907/11.
• Parties: ICDIA CORP., appellant, v. Nicole Almeida VISAGGI, respondent, et al., defendants.

135 A.D.3d 820

24 N.Y.S.3d 349

2016 N.Y. Slip Op. 00336

ICDIA CORP., appellant,

v.Nicole Almeida VISAGGI, respondent, et al., defendants.

2013-08640

Index No. 9907/11.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 20, 2016.

Trivella & Forte, LLP, White Plains, N.Y. (Christopher Smith of counsel), for appellant.

Lynch Schwab, PLLC, White Plains, N.Y. (Louis U. Gasparini and Jay Campbell of counsel), for respondent.

In an action, inter alia, to foreclose a mechanic's lien, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Giacomo, J.), entered July 9, 2013, as granted that branch of the motion of the defendant Nicole Almeida Visaggi which was for summary judgment dismissing the complaint insofar as asserted against her, and denied its motion for summary judgment on the cause of action to foreclose the mechanic's lien and dismissing the counterclaim of the defendant Nicole Almeida Visaggi.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendant Nicole Almeida Visaggi which was for summary judgment dismissing the complaint insofar as asserted against that defendant, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The defendant Nicole Almeida Visaggi leased commercial premises she owned to the defendants Richard Pierce, Charles Rutherford, and Webster Campbell, who intended to operate a pizzeria in the space. Campbell entered into a contract with the plaintiff, a corporation solely owned by the nonparty Thomas Poli, to renovate the leased premises for that purpose at a total cost of $235,000. The project subsequently stalled, through no fault of the plaintiff, after the plaintiff allegedly performed most of the work required by the contract. The plaintiff was never paid for its work, and, in 2011, it filed a mechanic's lien against the property.

The plaintiff thereafter commenced this action against Visaggi, among others, seeking, inter alia, to foreclose the mechanic's lien. The plaintiff moved for summary judgment on that cause of action and to dismiss Visaggi's counterclaim, and Visaggi moved, among other things, for summary judgment dismissing the complaint insofar as asserted against her. The Supreme Court granted that branch of Visaggi's motion, and denied the plaintiff's motion.

In opposition to Visaggi's prima facie showing of entitlement to judgment as a matter of law on the ground that the mechanic's lien was untimely, the plaintiff raised a triable issue of fact as to whether the lien was timely filed within eight months of “the last item of work performed or materials furnished” (Lien Law § 101 ). In that regard, Poli and Campbell submitted affidavits detailing specific work that was performed by the plaintiff in August 2010, approximately six months prior to the filing of the notice of lien. Contrary to the Supreme Court's determination, Poli did not unequivocally testify at his deposition that the plaintiff last performed any work at the premises in 2008, and thus, his affidavit averring that the plaintiff last performed work in 2010 did not so evidently contradict his deposition testimony that it could be said to “clearly” raise a feigned issue of fact (Glick & Dolleck v. Tri–Pac Export Corp., 22 N.Y.2d 439, 441, 293 N.Y.S.2d 93, 239 N.E.2d 725; cf. Sunshine Care Corp. v. Warrick, 100 A.D.3d 981, 983, 957 N.Y.S.2d 122; Soussi v. Gobin, 87 A.D.3d 580, 581, 928 N.Y.S.2d 80; Nieves v. ISS Cleaning Servs. Group, 284 A.D.2d 441, 442, 726 N.Y.S.2d 456; see generally Franklin v. Omni Sagamore Hotel, 5 A.D.3d 348, 349, 772 N.Y.S.2d 534; Nembhard v. Mount Vernon City School Dist. Bd. of Educ., 300 A.D.2d 456, 750 N.Y.S.2d 880).

Further contrary to the Supreme Court's conclusion, triable issues of fact exist as to whether Visaggi consented to the plaintiff's work for purposes of Lien Law § 3. Pursuant to Lien Law § 3, “[a] contractor ... who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, or of his agent, contractor or subcontractor ... shall have a lien for the principal and interest, of the value, or the agreed price, of such labor ... or materials upon the real property improved.” In the case of a leased property, a “ ‘contractor who performs work for, or provides equipment to, a tenant may nonetheless impose a mechanic's lien against the premises where the owner of the premises affirmatively gave consent for the work or equipment directly to the contractor, but not where the owner has merely approved or acquiesced in the undertaking of such work or the provision of such equipment’ ” (Matell Contr. Co., Inc. v. Fleetwood Park Dev., LLC, 111 A.D.3d 681, 682–683, 974 N.Y.S.2d 573, quoting Elliott–Williams Co., Inc. v. Impromptu Gourmet, Inc., 28 A.D.3d 706, 707, 813 N.Y.S.2d 778; see Sky Materials Corp. v. Frog Hollow Indus., Inc., 125 A.D.3d 751, 752, 4 N.Y.S.3d 91). “[T]he consent need not be explicit” (Sky Materials Corp., 125 A.D.3d at 752, 4 N.Y.S.3d 91), but there must be “some affirmative act or course of conduct establishing confirmation” (GCDM Ironworks v. GJF Constr. Corp., 292 A.D.2d 495, 496, 739 N.Y.S.2d 193; see Delany & Co. v. Duvoli, 278 N.Y. 328, 331, 16 N.E.2d 354).

Here, Poli testified at his deposition that Visaggi's agent, Robert Almeida, was present when Poli first met with Campbell in order to assess the job and give his bid. Almeida then approved the plans for the project and Visaggi acknowledged her approval, in writing, to the City of Mount Vernon Department of Buildings. Once the work started, according to Poli and Campbell, Almeida was constantly present at the work site, to “supervis[e]” and “approve” the work. Viewing...