Saratoga Associates Landscape Architects, Architects, Engineers and Planners, P.C. v. Lauter Dev. Gr

• Decision Date: 28 October 2010
• Parties: SARATOGA ASSOCIATES LANDSCAPE ARCHITECTS, ARCHITECTS, ENGINEERS AND PLANNERS, P.C., Appellant-Respondent, v. The LAUTER DEVELOPMENT GROUP et al., Respondents, and Abode Blue Chip, LLC, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

910 N.Y.S.2d 571
77 A.D.3d 1219

SARATOGA ASSOCIATES LANDSCAPE ARCHITECTS, ARCHITECTS, ENGINEERS AND PLANNERS, P.C., Appellant-Respondent,
v.
The LAUTER DEVELOPMENT GROUP et al., Respondents,
and
Abode Blue Chip, LLC, Respondent-Appellant.

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

Oct. 28, 2010.

910 N.Y.S.2d 572

Wardlaw Associates, P.C., Saratoga Springs (Donna E. Wardlaw of counsel), for appellant-respondent.

Roemer, Wallens, Gold & Mineaux, L.L.P., Albany (Earl T. Redding of counsel), for The Lauter Development Group and others, respondents.

Whiteman, Osterman & Hanna, Albany (Neil L. Levine of counsel), for respondent-appellant.

Before: SPAIN, J.P., LAHTINEN, KAVANAGH and GARRY, JJ.

GARRY, J.

77 A.D.3d 1220

Cross appeals (1) from an order of the Supreme Court (Teresi, J.), entered July 29, 2009 in Albany County, which partially granted a motion by defendant Abode Blue Chip, LLC for, among other things, summary judgment dismissing the complaint against it, and (2) from an order of said court, entered October 30, 2009 in Albany County, which, among other things, granted plaintiff's motion for summary judgment dismissing the counterclaim of defendant Abode Blue Chip, LLC.

Defendant Abode Blue Chip, LLC owns property in the Town of Guilderland, Albany County. In 2008, defendant Sanford Zimmerman, a principal of defendant The Lauter Development Group, discussed purchasing the property with Peter Cornell, an agent of Abode and the president of BBL Development Group, LLC, an affiliated entity of Abode. Lauter's interest in purchasing the property was conditioned on amending the existing site plan, so Lauter and/or Zimmerman retained plaintiff to prepare an amended plan. Thereafter, the anticipated real property purchase did not occur, and plaintiff allegedly was not paid in full for its services.

Plaintiff filed a notice of lien upon the property, which Abode contested, and plaintiff commenced this action seeking lien foreclosure and damages for, among other things, breach of contract. Following joinder of issue, Abode moved for summary judgment dismissing the foreclosure cause of action and awarding damages on its counterclaim for willful exaggeration. Supreme Court determined that Abode did not consent to plaintiff's work, discharged the lien, and denied summary judgment on Abode's claim for damages. Thereafter, Zimmerman sought summary judgment dismissing the complaint against him individually, and plaintiff cross-moved for summary judgment dismissing Abode's willful exaggeration counterclaim and seeking leave to amend the complaint to, among other things, add a claim that Zimmerman personally promised to pay plaintiff for the services rendered to Lauter. Supreme Court denied Zimmerman's motion, granted plaintiff's motion for summary judgment dismissing Abode's counterclaim and, as relevant here, denied plaintiff's motion for leave to amend the complaint. Plaintiff and Abode cross-appeal from both orders, and we affirm.

A mechanic's lien on real property is valid only when the lienor's services were performed with the consent or upon request of the owner or owner's agent ( see Lien Law § 3; Care Sys. v. Laramee, 155 A.D.2d 770, 771, 547 N.Y.S.2d 471 [1989] ). While express consent need not be shown, an affirmative act is required to demonstrate implied consent, and the owner's "[m]ere acquiescence

77 A.D.3d 1221

" in the lienor's activities

910 N.Y.S.2d 573

will not suffice ( Tri-North Bldrs. v. Di Donna, 217 A.D.2d 886, 887, 629 N.Y.S.2d 850 [1995]; see Beaudet v. Saleh, 149 A.D.2d 772, 773-774, 539 N.Y.S.2d 567 [1989], lv. denied 74 N.Y.2d 610, 546 N.Y.S.2d 554, 545 N.E.2d 868 [1989] ). Abode supported its summary judgment motion with, among other things, affidavits from Cornell and Zimmerman averring that neither Cornell nor Abode consented to plaintiff's work, intended to use it, or communicated directly with plaintiff about it. They further averred that they had an arm's length relationship and did not have a partnership or other association by which Abode might have been bound by Zimmerman's consent to plaintiff's work. This evidence was sufficient to meet Abode's initial burden and shift the burden to plaintiff to demonstrate the existence of triable issues of fact ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).¹

Plaintiff's submission of the affidavit of its president, Robert Bristol, was insufficient to meet that burden. Bristol describes conversations and transactions among plaintiff, Zimmerman, Abode, and others, attempting to raise factual...