Mahan Const. Corp. v. 373 Wythe Realty, Inc.

• Decision Date: 04 February 2011
• Citation: 31 Misc.3d 252,915 N.Y.S.2d 847
• Parties: MAHAN CONSTRUCTION CORP., Plaintiff, v. 373 WYTHE REALTY, INC., et al., Defendant.
• Court: New York Supreme Court

915 N.Y.S.2d 847

31 Misc.3d 252

MAHAN CONSTRUCTION CORP., Plaintiff,

v.373 WYTHE REALTY, INC., et al., Defendant.

Supreme Court, Kings County, New York.

Feb. 4, 2011.

Paula A. Miller, Smithtown, for Plaintiff.

Socrates Scott L. Nicholas, New York, for Defendant Wythe.

Robert A. Sesti, New York, for Defendant Macro.

CAROLYN E. DEMAREST, J.

Defendant Wythe Properties, LLC ("Wythe") moves pursuant to Lien Law § 19(6) for the discharge of three mechanic's liens filed against Wythe's property by plaintiff Mahan Construction Corp. ("Mahan"), defendant Macro Enterprises ("Macro"), and defendant J. Petrocelli Contracting, Inc. ("Petrocelli"). Wythe subsequently withdrew its motion to discharge Petrocelli's lien as the parties settled and stipulated that the lien would be discharged pursuant to the terms of the settlement. At oral arguments on December 22, 2010, this court denied Wythe's motion as to Macro for the reasons stated on the record and reserved decision on the motion as to Mahan's lien.

BACKGROUND

This action arises out of a construction project at 367 Wythe Avenue, Brooklyn New York ("Property"). Mahan entered into an agreement with 373 Wythe Realty Inc. ("373 Wythe") wherein Mahan was to provide and install steel materials on the project. Wythe, the owner of the Property, acquired title from 373 Wythe. Mahan filed a notice of mechanic's lien on the Property on April 8, 2009 with a claim for $89,700 in unpaid fees ("Lien"). The notice of lien describes the labor performed as "supply and install structural steel and deck," the material furnished as "structural steel," and the materials actually manufactured but not delivered to the real property as "structural steel."

DISCUSSION

Wythe moves to discharge the Lien on five separate grounds. Wythe argues: (1) Pursuant to Lien Law § 9, the Lien fails to specifically and adequately describe the alleged labor performed and materials supplied; (2) The verification of the lien is defective because it does not state a basis for the deponent's personal knowledge of the claims contained in the notice of lien; (3) The Lien did not disclose Mahan's role as a subcontractor of the project overseen by Petrocelli; (4) Mahan failed to serve the notice of lien upon general contractor Petrocelli; (5) Service of the notice of lien was insufficient pursuant to Lien Law § 11.

Wythe's claim that the Lien is invalid pursuant to Lien Law § 9 is unavailing as the Lien sufficiently identifies the labor performed and materials furnished. The Lien describes the labor performed as "supply and install structural steel and deck," the material furnished as "structural steel," and the materials actually manufactured but not delivered to the real property as "structural steel." These descriptions are sufficient to provide Wythe with enough information so the owner "may, upon inquiry, ascertain whether the material has been actually furnished or not, and the value of the same" ( Vogel v. Luitwieler, 5 N.Y.S. 154, 157 [Sup.Ct. 1889]; see Bachmann v. Spinghel, 164 A.D. 725, 726-727, 149 N.Y.S. 610 [2d Dept. 1914]; 8-92 Warren's Weed New York Real Property § 92.14[7][a] ).

Wythe's claim that the Lien is defective because the verification of the lien does not state a basis for the deponent's personal knowledge of the claims is unavailing as the verification was signed by the president of Mahan, Daniel Mayer ("Mayer"), based on his personal knowledge. The verification states that Mayer believes the statements in the notice of lien to be true based upon "deponent's own knowledge, except as to the matters therein stated to be alleged upon information and belief, and that as to those matters deponent believes it to be true." This verification of the notice of lien is sufficient pursuant to Lien Law § 9(7). Wythe's argument that the verification "was leftpartially incomplete" is unsubstantiated and thus unavailing.

Wythe's claims that the Lien is invalid due to Mahan's failure to disclose in the Lien that Petrocelli was the general contractor on the project and Mahan's purported failure to serve a notice of the Lien upon Petrocelli are unavailing as Mahan entered a contract with 373 Wythe which was identified in the Lien. As Mahan was in direct privity with 373 Wythe, Wythe has not demonstrated that Mahan had any obligation to identify Petrocelli in the Lien or serve them with notice of the Lien.

Wythe argues that the Lien is invalid pursuant to Lien Law § 11 as Mahan was not permitted to effectuate service of the notice of lien solely by posting a copy of the notice on the Property unless they were unsuccessful in personally serving an officer or agent of Wythe. As the affidavit of service does not indicate that the process server attempted any other service method, Wythe claims that the posting of notice was insufficient. In opposition, Mahan's counsel argues that posting the notice of lien at the Property was sufficient service and there is no requirement in the Lien Law that any preliminary efforts be made before serviceby posting at the premises is made. Further, Mahan argues that Wythe waived any defense as to service of the Lien as Wythe did not raise this affirmative defense in their answer.

Pursuant to Lien Law § 11, where the corporation is the owner of the property at issue, service of the notice of the lien 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. Failure to file proof of such a service with the county clerk within thirty-five days after the notice of lien is filed shall terminate the notice as a lien. (Emphasis added)

The affidavit of service for the notice of lien states that the process server:

POSTED by attaching a true copy of the NOTICE OF MECHANIC'S LIEN with the date and hour of service endorsed thereon by me, to a conspicuous place on the property at the address of: 367 Wythe Avenue Brooklyn, N.Y. 11211.

The affidavit of service does not indicate whether service was attempted on an officer of Wythe within the state or by any other method. In opposition to the motion to discharge the Lien, Mahan has not claimed that any other method of service was attempted and states:

It is submitted that Mahan went above and beyond [personal service on an officer or agent of Wythe within the state or service by registered or certified mail] by hiring a process server to post the lien at the premises. There is no requirement in the Lien Law or elsewhere that any prerequisite efforts be made before such substitute service.

Mahan's mechanic's lien against the Property is discharged due to insufficient service of the notice of lien pursuant to Lien Law § 11. "Pursuant to Lien Law § 11, a party is required to serve a notice of lien on a corporation by one of three specified methods. Strict...