By Michael Vandermark | Staff Writer
Notice of lien; CPLR § 2221(d)–(e); Lien Law §12-a; Private vs Public Entity.
Plaintiff, Metro Woodworking, entered into a subcontract agreement with Defendant, general contractor, to perform millwork for a hotel and retail complex (“Site 25”). Just over a year after the contract was signed, the parties terminated their agreement. Shortly afterwards, Plaintiff filed a private notice of lien against Site 25 and named GS Site 25 as the property owner. Plaintiff brought forth this action arguing, inter alia, breach of contract by GS Site 25 for unpaid amounts of services rendered by Plaintiff. Defendants contended that Plaintiff’s complaint was flawed because GS Site 25 was not the true owner of the property, but a subtenant of the Battery Park City Authority (“BPCA”) who was the true property owner. Defendants argued, because the true owner was never properly notified of the action, the complaint should be dismissed in its entirety. In light of these facts, the court vacated Plaintiff’s lien on the property and granted Defendants’ motion to dismiss. The court reasoned that because BPCA was a public entity, filing a private lien against it pertaining to its real property was not permissible. Rather, Plaintiff should have filed a public lien against the improvements of the property. Plaintiff sought leave to reargue or renew on the specific issue of the Notice of lien.
Upon examining whether or not to grant Plaintiff’s separate motions to reargue or renew, the court noted that each decision was well within their discretion. In deciding whether to allow a party to reargue an issue, the court applied the standard set forth in CPLR § 2221(d). Section 2221(d) provides that a leave to reargue “shall be based upon matters of fact or law allegedly overlooked by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion.” Furthermore, when considering a motion to renew, CPLR § 2221(e) provides that leave “shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination” and “shall contain reasonable justification for the failure to present such facts on the prior motion.”
Plaintiff specifically requested leave to amend or modify the existing Notice of lien under Lien Law §12-a. Under Section 12-a a court may allow modification once three requirements are met: 1) the primary notice of lien must be valid, 2) the modification must affect a mistake that is not a defect in substance, and 3) the modification must not be to the prejudice of another party. The court noted that even had the lien been properly filed, and substantially complied with §12-a requirements, a modification would not be enough for the Notice of lien to be valid. The court rejected Plaintiff’s request to modify the lien from a private to a public one, reasoning that they “are two different kinds, filed in two different places, and differently published.” Finally, the Plaintiff argued that it substantially complied with the Lien Law since the named owner of the property in the Notice was GS Site 25 and that this was sufficient under the definition of an “owner” under the Lien Law. The court rejected Plaintiff’s contention reasoning that while this would be true for private entities, it is not so for public ones. Therefore, Plaintiff failed to meet the first element under §12-a. In sum, the court granted Plaintiff’s motion to reargue, but denied its motion to renew and denied Plaintiff’s motion for leave to amend the Notice of lien.
Metrowoodworking Inc., v. Hunter Roberts Constr. Group, LLC, NY Slip Op 50110(U) (2015) (Ramos, J.).