Met Painting Co., Inc. v. Dana

• Decision Date: 10 May 1977
• Citation: 394 N.Y.S.2d 392,90 Misc.2d 289
• Parties: MET PAINTING CO. INC. v. Mrs. J. M. DANA et al.
• Court: New York City Court

Page 392

394 N.Y.S.2d 392

90 Misc.2d 289

MET PAINTING CO. INC. v. Mrs. J. M. DANA et al.

Civil Court of the City of New York, New York County.

May 10, 1977.

David A. Pravda, New York City, for defendant.

Rothfeld & Rothfeld by Solomon Rothfeld, New York City, for plaintiffs.

BURTON S. SHERMAN, Judge.

In this non jury action for work, labor and services and to foreclose a mechanics lien, the plaintiff a contractor sues a landlord owner and a tenant to recover damages for painting defendant tenants' apartment. The services were performed pursuant to contract between plaintiff and the tenant. The Court finds that the reasonable value of the services performed are the same as the contract price plus extras. The tenant has defaulted and judgment shall be entered against her in the sum of $1062.40 with interest from April 1, 1975. The remaining issue is whether the defendant landlord is liable for the aforementioned sum.

Section 3 of the Lien Law provides for a mechanic's lien upon real property where there has been an improvement "with the consent or at the request for an owner . . .". In this case, the landlord by written lease granted the tenant a $500 rent concession for decorating work to her apartment. "This concession will be applied to the first month after tenant has submitted bills as to proof of payment of at least $500 for work completed." The plaintiff contends that this constituted a consent by the owner and satisfied the requirements of Section 3 of the Lien Law. The next paragraph of the lease provides "the tenant states that he (sic) has examined the demised premises and agrees to take possession of same 'As Is', and the landlord shall not be required or obligated to do any repair work, painting or decorating or render any services of any nature whatsoever." The defendant claims that this paragraph refutes any claim of actual or implied consent or at, best, it limits consent for work to be done. Therefore, its liability at best is limited to $500, the extent of the concession for decorating fees.

The consent by an owner provided for in Section 3 of the Lien Law may be actual or implied. (National Wall Paper Co. v. Sire, 163 N.Y. 122, 57 N.E. 293). ¹ By granting the tenant the right to decorate the apartment, the landlord expressly consented to the painting. And, of course, this improved to some extent the condition of the property. Nor can it be said that the "As Is" paragraph in the lease, nor the agreement that the landlord would not be required to paint, change the result. A landlord cannot by private agreement with a tenant limit the rights of a lienor who has improved the condition of property. For the very purpose of the Lien Law is to protect persons who have improved the value of real property. (See cases cited 37 N.Y.Jur. 119, Sec. 2, Mechanics Lien).

The remaining question is whether the consent was qualified and thus limited the extent of the lien to $500 as the landlord contends. The fact that the lease provided a $500 concession for the decorating work does not qualify the consent or limit the lien. Painting is usually...