Lona & Sons, Inc. v. Raposo

• Decision Date: 19 June 2012
• Docket Number: No. 14064/2010.,14064/2010.
• Citation: 36 Misc.3d 1203,2012 N.Y. Slip Op. 51177,957 N.Y.S.2d 264
• Court: New York Supreme Court
• Parties: LONA & SONS, INC., and Baldwin Construction Corp., Plaintiffs, v. Octavio RAPOSO d/b/a Raposo Homes, Amanda R. LLC, Greg R. LLC, International Fidelity Insurance Company, “John Doe One” Through “John Doe Ten,” Defendants.

36 Misc.3d 1203

957 N.Y.S.2d 264

2012 N.Y. Slip Op. 51177

LONA & SONS, INC., and Baldwin Construction Corp., Plaintiffs,

v.Octavio RAPOSO d/b/a Raposo Homes, Amanda R. LLC, Greg R. LLC, International Fidelity Insurance Company, “John Doe One” Through “John Doe Ten,” Defendants.

No. 14064/2010.

Supreme Court, Queens County, New York.

June 19, 2012.

OPINION TEXT STARTS HEREROBERT J. McDONALD, J.

The following papers numbered 1 to 15 were read on this motion by the defendants for an order pursuant to CPLR 3212 and Lien Law § 11 granting summary judgment and dismissing the first cause of action asserted by plaintiff LONA & SONS, INC., to foreclose a mechanic's lien and discharging the lien and surety bond filed against defendants OCTAVIO RAPOSO and AMANDA R. LLC on the ground that the lien was not served properly pursuant to statute; and for an order pursuant to CPLR 3212 and Lien Law § 19(6) granting summary judgment and dismissing the complainant of plaintiff Baldwin Construction Corp., on the ground that Baldwin did not enter into a contractual relationship with or furnish labor and materials to the defendants:

Papers Numbered

+--------------------------------------------+
                ¦Notice of Motion–Affirmations–Exhibits¦1–8  ¦
                +--------------------------------------+-----¦
                ¦Affirmation in Opposition             ¦9–12 ¦
                +--------------------------------------+-----¦
                ¦Reply Affirmation                     ¦13–15¦
                +--------------------------------------------+
                

Plaintiffs, LONA & SONS, INC. (Lona) a subcontractor, and BALDWIN CONSTRUCTION CORP., (Baldwin), commenced this action against the defendants to foreclose on three mechanic's liens and for damages for breach of contract and quasi-contract. Defendant Octavio Raposo, d/b/a Raposo Homes, a developer and manager of real property, retained plaintiff, Lona, to perform excavation and drainage work and to remove construction and demolition debris from two properties in Queens County, one owned by Amanda R. LLC, located at 94–25 Alstyne Avenue, Corona, and the other owned by Greg R. LLC., located at 4705–4709 104th Street, Corona. Raposo was engaged in a project to develop both properties as multiple dwellings. After Lona performed the work, it removed the construction and demolition debris from both sites to a landfill in Kings Park, Long Island, owned by Anthony Santilli, the owner of Baldwin. Raposo paid Lona a total of $266,000 for work performed. However, a dispute arose over the amount of dirt which Lona excavated, and as a result, Lona filed two mechanic's liens, one against the property owned by Amanda R. LLC, in the amount of $78,664.00, dated September 14, 2009, and one against the property owned by Greg R. LLC, dated June 4, 2009, for $44,309.00, asserting that said sums for labor and materials are still due and owing to Lona. Baldwin, a subcontractor retained by Lona, filed a separate mechanic's lien dated June 15, 2009, against the property owned by Amanda R. LLC in the amount $12,700.00 for dumping of demolition materials removed from the Alstyne Avenue project.

On April 18, 2011, this Court signed a consent order pursuant to Lien Law § 37 discharging the mechanic's liens filed by Lona against the Alstyne Avenue property in consideration of a surety bond issued by International Fidelity Insurance Company in the amount of $86,532 .00 for the payment of any judgment which may be rendered against the property in the within action. The plaintiffs were granted leave to serve an amended complaint naming International Fidelity Insurance Company as a party-defendant. On November 29, 2011, this Court granted a consent order releasing the mechanic's lien filed by Lona against the 104th Street property in consideration of a surety bond issued by International Fidelity Insurance Company in the amount of $48,740.00. Amanda R. LLC also executed a bond from International Fidelity Insurance Company in the sum of $13,970.00 to discharge Baldwin's mechanic's lien.

Plaintiffs, Lona and Baldwin, initially commenced an action to foreclose the mechanic's liens and for breach of contract by filing a summons and complaint on June 3, 2010. Plaintiffs served an amended complaint dated February 3, 2012, adding International Fidelity Insurance Company as an additional defendant.

Defendants now move for an order pursuant to Lien Law § 59 canceling and discharging the surety bond of International Fidelity and for an order pursuant to CPLR 3212 and Lien Law § 11 dismissing the first cause of action brought by Lona to foreclose its mechanic's lien in the amount of $78,664.00 against the Alstyne Avenue property on the ground that the mechanic's lien was not properly served on Amanda R. LLC, the owner of the Alstyne Avenue property or on Octavio Raposo, the general contractor.

There is no dispute that the mechanic's lien referred to in Lona's first cause of action was served by Lona's counsel, Marshall M. Stern, Esq., on September 21, 2009, by affixing a true copy of the “Notice of Mechanic's Lien” to the premises located at 94–25 Alstyne Avenue. Defendants contend that said service was improper as Lien Law § 11 provides for service by posting only if the owner cannot be found within the State. Specifically Lien Law § 11 states:

“ § 11. Service of copy of notice of lien

Within five days before or thirty days after filing the notice of lien, the lienor shall serve a copy of such notice upon the owner, if a natural person, (a) by delivering the same to him personally, or if the owner cannot be found, to his agent or attorney, or (b) by leaving it at his last known place of residence in the city or town in which the real property or some part thereof is situated, with a person of suitable age and discretion, or (c) by registered or certified mail addressed to his last known place of residence, or (d) if such owner has no such residence in such city or town, or cannot be found, and he has no agent or attorney, by affixing a copy thereof conspicuously on such property, between the hours of nine o'clock in the forenoon and four o'clock in the afternoon; if the owner be a corporation, said service shall be made (I) by delivering such copy to and leaving the same with the president, vice-president, secretary or clerk to the corporation, the cashier, treasurer or a director or managing agent thereof, personally, within the state, or (ii) if such officer cannot be found within the state by affixing a copy thereof conspicuously on such property between the hours of nine o'clock in the forenoon and four o'clock in the afternoon, or (iii) by registered or certified mail addressed to its last known place of business.”

Defendants maintain that the plaintiffs knew that Raposo and Amanda R. LLC maintained their place of business at 102–30 47th Avenue, Corona, New York as plaintiffs set forth said address in their complaint and sent bills and invoices to said address. The President of Lona, Giusseppi Minnici, also stated in his deposition testimony that he knows where Raposo maintains his office. The address for Amanda R. LLC at 102–30 47th Avenue, Corona, New York, is also available as a public record on ACRIS. Therefore, counsel maintains that because there is no statement contained in Mr. Stern's affidavit of service as to what attempts he made at personal service prior to posting the notice of lien, that service of the notice of lien on the Alstyne Street property is invalid and that Lona's bond should be cancelled and discharged of record, and as a result, the first cause of action based upon said bond must be dismissed.

Defendants also move to dismiss all three causes of action asserted by Baldwin on the...