Scarano Architect, PLLC v. 6322 Holding Corp.

• Decision Date: 20 May 2012
• Docket Number: No. 9828/10.,9828/10.
• Citation: 35 Misc.3d 1228,954 N.Y.S.2d 761,2012 N.Y. Slip Op. 50917
• Parties: SCARANO ARCHITECT, PLLC, Plaintiff, v. 6322 HOLDING CORP. and Carver Federal Savings Bank, Defendant.
• Court: New York Supreme Court

35 Misc.3d 1228

954 N.Y.S.2d 761

2012 N.Y. Slip Op. 50917

SCARANO ARCHITECT, PLLC, Plaintiff,

v.6322 HOLDING CORP. and Carver Federal Savings Bank, Defendant.

No. 9828/10.

Supreme Court, Kings County, New York.

May 20, 2012.

Isaac Tilton, Esq., Itkowitz and Harwood, for Plaintiffs.

Gary Rosen Esq., Gary Rosen Law Firm, PC, for Defendants.

Carver Federal Savings Bank, pro se.

YVONNE LEWIS, J.

Defendant 6422 Holding Corp. moves for an order granting: “1. Summary Judgment against Plaintiff in favor of Defendant 6422 Holding Corp.; granting2. Summary Judgment on Defendant 6422 Holding Corp.'s Counterclaims against the Plaintiff, and; 3. finding that Plaintiff willfully exaggerated its Mechanic's Lien” [ sic ].

Background

The plaintiff has asserted mechanic's liens on six condominium units, owned by movant and in the building located at 6422 Bay Parkway in Brooklyn. The defendant Carver Federal Savings Bank does not take a position in the present dispute between the plaintiff and movant, and has appeared in this action solely to assert that its mortgage interest in one of the units owned by the movant is superior in the event of a judgment of foreclosure and sale. Pursuant to the Lien Law, the plaintiff served the movant with notices of the mechanic's liens, dated March 10, 2010 and May 25, 2010. Thereafter, on May 27, 2010, the plaintiff commenced the instant action by filing a summons and verified complaint. On June 1, 2010, the plaintiff filed a notice of pendency, asserting that the liens encumber the subject property.

The verified complaint states that on or about February 8, 2004, the plaintiff agreed to provide the movant with architectural work in connection with the subject units for the sum of $210,964.88. The complaint further states that the movant has only submitted payment in the amount of $84,555.50, leaving a balance of $126,409.38. The liens are in this amount. The plaintiff asserts four causes of action: foreclosure of the lien, breach of contract, quantum meruit and unjust enrichment. On June 18, 2010, the movant interposed an answer containing several affirmative defenses and two counterclaims. The first counterclaim argues that the notices of mechanic's liens are void because of the plaintiff's willful exaggeration thereof. The second counterclaim asserts that the plaintiff breached the subject agreement, causing damages in the sum of $250,000 to the movant.

Movant's Arguments

6322 Holding Corp. first disputes the amount it owes the plaintiff. It claims that relevant deposition testimony and documents indicate that in 2009, it and the plaintiff agreed to a substitute deal whereby the plaintiff would discharge the prior debt for the sum of $20,000.00. The movant further claims that it has paid the sum of $15,000.00 to the plaintiff and, therefore, only owes the plaintiff $5,000.00. Upon that claim, the movant reasons that the alleged mechanic's liens in the amount of $126,409.38 are grossly overstated and the lien is therefore void. Indeed, the movant characterizes the plaintiff's actions as frivolous and fraudulent.

Moreover, the movant claims that the plaintiff has a history of asserting mechanic's liens and commencing lawsuits to extort allegedly due sums for questionable architecture work. The movant submits a copy of a recent article from a local newspaper stating that the plaintiff's principal is no longer allowed to file construction plans with the City of New York Department of Buildings. The movant avers that, therefore, the plaintiff was unable to obtain a certificate of occupancy for the subject property. The movant further asserts that it was thus required to obtain a certificate of occupancy at its own expense. Having obtained the certificate of occupancy on its own, the movant concludes that it performed all its obligations pursuant to the subject agreement and asserts that, in fact, the plaintiff breached the subject agreement.

Next, the movant asserts that the plaintiff's principal admitted, at his deposition, that pursuant to the substitute agreement, the movant owed only $5,000.00 when the notices of lien were served. Moreover, the movant submits a copy of electronic mail, dated February 9, 2010 and from the plaintiff's bookkeeper, that indicates that movant owed only $5,000.00 when the notices of lien were served. The movant also contends that the plaintiff's bookkeeper also testified at her deposition that movant owed only $5,000.00 when the notices of lien were served. Additionally, the movant notes that the bookkeeper testified that the plaintiff charged the movant for interest on amounts allegedly due pursuant to the subject agreement, but that the agreement did not allow the plaintiff to do so.

The movant concludes that, pursuant to section 39 of the Lien Law, the subject notices of lien are void because the plaintiff wilfully exaggerated the amount claimed. As a consequence thereof, the movant argues that pursuant to section 39–a of the Lien Law, the plaintiff is now liable for all damages stemming from the exaggerated amount, including reasonable attorney's fees and the difference between the actual and claimed amounts secured by the subject lien.

Plaintiff's Arguments

In opposition to the movant's arguments, the plaintiff first asserts that from 2004 to 2010, and pursuant to a written agreement, the plaintiff provided the movant with architectural services with respect to the subject property. The plaintiff further asserts that it performed all of its obligations under the agreement for the amount of $210, 964.88; however, when the notices of lien were served, the movant owed (and still owes) the balance of $126,409.38, plus interest thereon. The plaintiff also argues that the movant mischaracterizes the alleged substitute deal. The plaintiff acknowledges that, in September of 2009, the movant and the plaintiff agreed to settle the underlying debt for the amount of $20,000.00; however, the plaintiff argues, that contrary to the movant's contention, the September 2009 deal was an accord and not a substitute agreement. The plaintiff reasons that, since as of March of 2010, the movant still had not complied with the accord, the accord was never satisfied, enabling the plaintiff to claim and assert mechanic's liens for the full amount due: $126.409.38. Lastly, the plaintiff submits the affidavit of its principal, averring in substance to these assertions.

At best, claims the plaintiff, the movant's arguments demonstrate an issue of fact with respect to whether the subsequent agreement was intended to substitute the original agreement. In any event, argues the plaintiff, the movant has failed to demonstrate the absence of issues of material fact with respect to the amount owed—and, therefore, whether the amounts claimed in the notices of lien were exaggerated.

Discussion

Summary judgment is a drastic remedy that deprives a litigant of his or her day in court and should thus only be employed when there is no doubt as to the absence of triable issues of material fact (Kolivas v. Kirchoff, 14 AD3d 493 [2005];see also Andre v. Pomeroy, 35 N.Y.2d 361, 364 [1974] ). However, a motion for summary judgment will be granted if, upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law (CPLR 3212[b]; Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 967 [1988];Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ) and the party opposing the motion for summary judgment fails to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986], citing Zuckerman, 49 N.Y.2d at 562).

The proponents of a motion for summary judgment must first demonstrate entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (Manicone v. City of New York, 75 AD3d 535, 537 [2010], quoting Alvarez, 68 N.Y.2d at 324;see also Zuckerman, 49 N.Y.2d at 562;Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] ). If the existence of an issue of fact is even arguable, summary judgment must be denied (Museums at Stony Brook v. Vil. of Patchogue Fire Dept., 146 A.D.2d 572 [1989] ). Also, parties opposing a motion for summary judgment are entitled to every favorable inference that may be drawn from the pleadings, affidavits and competing contentions (Nicklas v. Tedlen Realty Corp., 305 A.D.2d 385 [2003];see also Akseizer v. Kramer, 265 A.D.2d 356 [1999];McLaughlin v. Thaima Realty Corp., 161 A.D.2d 383, 384 [1990];Gibson v. American Export Isbrandtsen Lines, 125 A.D.2d 65, 74 [1987];Strychalski v. Mekus, 54 A.D.2d 1068, 1069 [1976] ). Indeed, in deciding a motion for summary judgment, the court is required to accept the opponents' contentions as true and resolve all inferences in the manner most favorable to the opponents (Pierre–Louis v. DeLonghi America, Inc., 66 AD3d 859, 862 [2009], citing Nicklas, 305 A.D.2d at 385;Henderson v. City of New York, 178 A.D.2d 129, 130 [1991];see also Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgt., L.P., 7 NY3d 96, 105–106 [2006] ).

A party seeking summary judgment has the burden of establishing prima facie entitlement to judgment as a matter of law by affirmatively demonstrating the merit of a claim or defense and not by simply pointing to gaps in the proof of an opponent (Nationwide Prop. Cas. v. Nestor, 6 AD3d 409, 410 [2004];Katz v. PRO Form Fitness, 3 AD3d 474, 475 [2004];Kucera v. Waldbaums Supermarkets, 304 A.D.2d 531, 532 [2003] ). Lastly, “[a] motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility' “ (Ruiz v. Griffin, 71 AD3d 1112, 1112 [2010], quoting Scott v. Long Is. Power Auth., 294 A.D.2d 348 [2002];see also Benetatos v....