Opinion
600326/2005.
Decided on February 14, 2008.
In these actions to foreclose on mechanic's liens, defendants 860 Fifth Avenue Corporation ("860 Fifth Avenue"), William Oppenheim ("Mr. Oppenheim") and Avivith Oppenheim ("Mrs. Oppenheim") (the "Oppenheims") (collectively, the "movants") move for summary judgement to dismiss the complaint of the plaintiff, B G Mechanical Corp. ("B G") in Action #
1, on the ground that there is new evidence dispositive on the issue of whether the Oppenheims were "owners" as that term is defined under the Administrative Code so as to bar plaintiff, an unlicensed contractor, from seeking payment for work performed. The movants also seek to dismiss B G's cross-claims in Action #
2 for monies allegedly owed and dismissal of B G's mechanic's lien.
In turn, B G cross moves to dismiss the counter-claim of 860 Fifth Avenue in Action #
2 for willful exaggeration of lien in the event the movants' motion is granted and the mechanic's lien is expunged.
Factual Background
The factual recitation herein is taken in large part from Mrs. Oppenheim's affidavit solely for purposes of deciding the instant motion.
In April 2003, Mrs. Oppenheim contracted to purchase shares pertaining to cooperative apartment 11K (the "apartment") of defendant 860 Fifth Avenue's building, with the intent of renovating the unit. In May 2003, the Oppenheims entered into a contract with Mojo-Stumer Architects in connection with renovating the apartment (the "project"). Mrs. Oppenheim closed on the apartment in September 2003. Thereafter, Mrs. Oppenheim contracted with defendant Vista New York, Inc. ("Vista") to be the general contractor on the project, which in turn, hired B G as the subcontractor to perform the heating, ventilation, and air conditioning work in the apartment. Due to design, construction, and pricing disputes arising during the project, the Oppenheims requested that Vista terminate B G's subcontract.
Due to the problems and extensive delays in renovation, 860 Fifth Avenue terminated the project altogether. B G subsequently filed a mechanic's lien on October 15, 2005, which was followed by a series of liens filed by Ragnatelli, Inc. d/b/a "Elite Woodworking," Ess Vee Acoustical Contractors Inc., and SBA Plumbing Corp. against the apartment due to Vista's failure to pay its subcontractors. Such liens are the subject of the instant lien foreclosure actions. Prior Motion for Summary Judgment
B G commenced foreclosure Action #
1 against Vista, 860 Fifth Avenue, NYS Department of Taxation and Finance, NYC Department of Finance and Ragnatelli, Inc. d/b/a "Elite Woodworking" ("Elite Woodworking"). Ess Vee Acoustical Contractors Inc. and SBA Plumbing Corp. commenced foreclosure Action #
2 against, inter alia, 860 Fifth Avenue and the Oppenheims. Both actions were previously joined for trial.
In May 2005, 860 Fifth Avenue moved for summary judgement dismissing the complaint and vacatur of the mechanic's lien, on the grounds that B G was not a licensed home improvement contractor, and thus, could not pursue an action for breach of contract, quantum meruit, or to foreclose on a lien. B G opposed the motion, arguing that a home improvement license was not required, and that the work was not home improvement work. B G also argued that the Oppenheims were not "owners" as that term is defined in the Administrative Code section governing home improvement projects.
By order dated October 3, 2005, the Court (Feinman, J.), denied summary judgment as premature. After noting that B G failed to allege that it was a licensed contractor, the Court stated that an unlicensed home improvement contractor may not enforce a home improvement contract against an owner or seek recovery in quantum meruit. In addressing whether the Oppenheims were "homeowners" pursuant to N.Y.C. Administrative Code § 20-386[4] and [6], the Court concluded that "there is a question of fact as to whether the Oppenheims are actually tenants living in the apartment being renovated, and therefore, summary judgment based on N.Y.C. Administrative Code § 20-386 is not appropriate, even where the contractor is not licensed." The Court further concluded that "Defendants' reliance on Routier v. Waldeck, 708 NYS2d 270 {184 Misc 2d 487} (Dis. Ct. Nassau County 2000), which holds that the term owner' includes people who intend to reside in the building once the contractor's work is complete, but not real estate investors, is not dispositive where there is a question as to what are the final intentions of the Oppenheims. . . ."
Instant Motion
The movants now argue that a Letter of Completion was issued, indicating that the renovation work is complete, that the Oppenheims have moved into the apartment in December 2006, and that they have been using the apartment as a residence ever since. Therefore, there are no remaining issues of fact as to the Oppenheims' intention to use the apartment as a residence. Further, at no time, have the Oppenheims used the apartment for real estate investment purposes as a rental or otherwise.
The movants argue that although successive summary judgment motions are generally disfavored, a subsequent motion for summary judgment is not precluded where new evidence that was not available at the time of the prior motion is proffered in support of the second summary judgment motion. The new facts establish that the Oppenheims are entitled to the protections afforded "owners" against unlicensed home improvement contractors such as B G. Thus, B G's causes of action for breach of contract, quantum meruit and lien foreclosure must be dismissed in their entirety and the subject lien vacated. Further, upon dismissal of the subject liens, claims in Action #
2 against bonding company, Fidelity and Deposit Company of Maryland ("Fidelity"), must also be dismissed, and the bonds discharged.
The Court does not reach the movants' request to dismiss the claims against Fidelity. The submissions indicate that the Oppenheims procured bonds in connection with the liens filed by Ess Vee and SBA (Complaint in Action #
2, ¶¶ 22-28, 47-48). There is no indication that bonds were procured in connection with the B G lien at issue.
B G opposes the motion, arguing that the movants have failed to satisfy the requirements for renewal. First, the motion was not made to the appropriate Judge (Judge Feinman) who decided the prior motion. Moreover, there are no real new facts presented warranting a reversal or modification of the decision. Finally, there is no justification for defendant's failure to present such facts on the prior motion.
B G further argues that the N.Y.C. Administrative Code requires that the Oppenheims actually reside in the dwelling unit in which the work is to be performed. Here, the Oppenheims did not reside in a temporary residence while renovations ensued; instead, they lived in Morristown New Jersey, both prior to and subsequent to the renovations performed at the apartment. The movants previously failed to establish that at the time of the contract, it was the Oppenheims' intention to reside in the apartment after the project was complete, and have failed to do so here. It would be prejudicial and unjust to allow the movants to use the Oppenheims' move into the apartment as a basis for this motion, since the Court has already decided the issue of "owners" based on "intentions." It is clear that the Oppenheims did not have the intention of residing at the apartment at th time the work was being performed. B G also notes that the consumer protection statute at issue is not intended to protect savvy consumers who invoke the statute in order to avoid payments to unlicensed contractors. Mrs. Oppenheim is an attorney and Mr. Oppenheim is a surgeon. Both are sophisticated, even more so than the contractors from whom the statute is intended to protect.
Further, in the event the Court expunges B G's mechanic's lien, then the Court should dismiss 860 Fifth Avenue's counterclaim alleging damages resulting from a wilful exaggeration of the mechanic's lien, since the lien would no longer exist.
In reply, the movants argue that their motion is not one for renewal or reargument, but one for summary judgment brought on with new evidence. The motion is not addressed to and does not seek to change any of the prior holdings of the Court. Instead, the motion seeks resolution of the only remaining issue of fact that the Court did not decide, namely, whether the final intentions of the Oppenheims were to use the apartment as a residence or for investment purposes, once the work was completed. The new evidence is the Certificate of Completion and the sworn testimony of Mrs. Oppenheim that she and her husband always intended to use the apartment as residence. Further, copies of electricity bills, phone service bills, and cable television bills further evidence the residential use of the apartment. Thus, there is no question that the Oppenheims are considered "owners" under the applicable statute.
It is further argued that nowhere in the Court's prior decision is there mention that the Oppenheims' intent be assessed at the time the construction contract was entered into. Instead, the Court cited to caselaw holding that "owners" include those who intend to reside in the subject premises once the work is complete. Therefore, the only relevant "final intention" is what the Oppenheims intended once the renovation work was complete. The Oppenheims intended to use the apartment as their residence, and whether they have another residence in New Jersey is irrelevant. There is no requirement that the apartment be used as a primary residence, a concept found in rent stabilization laws. Finally, the Oppenheims deny using the statute as a sword and shield.
Further, the Oppenheims agree to withdraw their claim for wilful exaggeration of lien in the event the Court vacates the lien.
Analysis
That the instant motion is not before Justice Feinman, who signed the first order, does not render the instant motion procedurally defective. Although, as B G points out, CPLR 2221 provides that a motion for leave to renew shall be made to the judge who signed the order, this is required " unless he or she is for any reason unable to hear it" (emphasis supplied). Since the entry of the order at issue, Justice Feinman is no longer assigned to this case, and the instant case has been reassigned to this Court. Accordingly, this Court has authority to hear the instant motion.
In any event, pursuant to CPLR 2221, a motion for leave to renew shall be based upon new facts not offered on the prior motion or new law that would change the prior determination and shall contain reasonable justification for the failure to present such facts on the prior motion. The motion to renew, when properly made, posits newly discovered facts that were not previously available or a sufficient explanation is made why they could not have been offered to the Court originally ( see discussion in Alpert v Wolf, 194 Misc 2d at 133, 751 NYS2d 707; D. Siegel New York Practice § 254 [3rd ed.1999]). A motion to renew, "is intended to draw the court's attention to new or additional facts which, although in existence at the time of the original motion, were unknown to the party seeking renewal and therefore not brought to the court's attention" ( Beiny v Wynyard, 132 AD2d 190, 522 NYS2d 511, lv. dismissed 71 NY2d 994, 529 NYS2d 277, 524 NE2d 879); Metcalfe v City of New York, 223 AD2d 410, 636 NYS2d 60 [1st Dept 1996] [renewal was proper where plaintiff presented evidence showing existence of issue of fact as to whether defendant was performing construction work at site at time of injury and presented documents where that information was unknown at time original summary judgment motion was decided, and where the information had been obtained, subsequent to the determination, during the course of other defendants' depositions]).
The Court notes that the instant motion is not one to reargue, since the movants do not state or argue that the Court overlooked or misapprehended the facts or the law (CPLR 2221; cf. Macklowe v Browning School, 80 AD2d 790, 437 NYS2d 11 [1st Dept 1981]).
A party is not barred from making a successive motion for summary judgment, where the second motion is based upon new information obtained through discovery, i.e., depositions and, as such, not repetitive of the first ( Beagan v Manhattanville Nursing Care Center, Inc., 176 AD2d 633, 575 NYS2d 70; see Olszewski v Park Terrace Gardens, Inc. , 18 AD3d 349 , 798 NYS2d 1 [1st Dept 2005] [second summary judgment motion was not an improper successive motion for summary judgment where motion clearly raised different arguments and adduced evidence that was not available at the time of the employer's first motion for summary judgment]; Fielding v Environmental Resources Management Group, 253 AD2d 713, 678 NYS2d 253 [1st Dept 1998] [court did not err in entertaining successive motions for summary judgment; new materials, including deposition transcripts, obtained through discovery since the prior round of motion practice rendered the instant motions entirely appropriate]).
Mrs. Oppenheim's newest contentions are that since the prior Order was entered, the renovation work has been completed, that she and her husband have moved into the apartment, and that they have been residing there ever since, as originally intended. The movants have submitted the Oppenheims' cable and utility bills to demonstrate that they are now residing in the apartment. Since the Certificate of Completion and utility bills were unavailable at the time the previous motion was decided, and Mrs. Oppenheim can now attest that she and her husband are currently residing in the apartment, such new facts permit this Court to entertain the instant motion for summary judgment without running afoul of the rule against successive motions for summary judgment.
It bears repeating that the Court previously held that there was "a question of fact as to whether the Oppenheims are actually tenants living in the apartment being renovated." The Court also stated that Routier v Waldeck, 708 NYS2d 270 {184 Misc 2d 487} (Dis. Ct. Nassau County 2000), was not dispositive as there was "a question as to what are the final intentions of the Oppenheims. . . ." The rule of law as applied by Judge Feinman is law of the case, a doctrine that operates like an intra-action res judicata (Commentary, CPLR 2221:2), and thus, is binding upon this Court of co-ordinate jurisdiction ( George W. Collins, Inc. v Olsker-McLain Indus., Inc., 22 AD2d 485, 257 NYS2d 201 [4th Dept 1965]).
Contrary to B G's contention, neither Judge Feinman's decision, nor Routier v Waldick (supra) held that N.Y.C. Administrative Code applies to individuals who intend to reside in the subject premises "at the time the contract was entered into." (Plaintiff's Memo of Law, page 4). Judge Feinman expressly held that the issue of fact rested upon what "are" the intentions of the Oppenheims. In a separate section of the decision, Judge Feinman similarly stated that an issue of fact existed as to what "are" the "final intentions" of the Oppenheims. Nowhere in such decision did Justice Feinman consider what the intentions of the Oppenheims "were" at the time Mrs. Oppenheim entered into the subject contract.
As cited to in Judge Feinman's order, Routier v Waldick (supra) states that the term "owners" encompasses two categories of individuals: individuals who reside in the subject premises and those who intend to reside in the subject premises after the home improvements are completed" ( Routier v Waldick (supra)).
In light of the Oppenheims' return to the apartment, and corresponding utility bills, the Court must now determine whether such facts resolve, as a matter of law, the issues raised by the parties' previous submissions as defined by the Court.
As to the first issue concerning the "actual residence" of the Oppenheims, which precluded summary judgment, Judge Feinman cited to Ayres v Dunhill Interiors, Ltd., ( 138 AD2d 303, 526 NYS2d 440 [1st Dept 1988]) in finding an issue as to whether the Oppenheims "are actually tenants living in the apartment being renovated." In Ayres, the plaintiff submitted an affidavit stating that she had commenced full-time residence in the subject apartment in June of 1985 and had moved into temporary quarters at 7 East 9th Street (the "other apartment") in January of 1986, because the construction work made it impossible to continue residing at the subject apartment. The plaintiff also stated that she moved back into the subject apartment January of 1987. The First Department reversed the order granting summary judgment in the plaintiff's favor, and criticized the motion court for accepting plaintiff's contention that she was the tenant of the apartment being renovated without a sufficient evidentiary basis having been made out. The Court stated that the defendant submitted proof that plaintiff also owned three other apartments, thereby claiming that plaintiff was not residing in the subject apartment. The Court also noted that the defendant submitted an affidavit stating that contract negotiations always took place at plaintiff's "fully-furnished apartment" at the other apartment and submitted a copy of a Nynex Manhattan telephone directory showing plaintiff's other residence. The evidence submitted was held insufficient to resolve the "question of plaintiff's actual residence."
Likewise, although Mrs. Oppenheim now states that she and her husband currently reside in the apartment, and that the utility bills are the result of their residency, such facts do not resolve the issue of whether the Oppenheims are "actually" tenants living in the apartment. The Court (Judge Feinman) previously noted that a search for the Oppenheims' drivers license records revealed that neither Mr. nor Mrs. Oppenheim held a New York drivers license, and that the Oppenheims were residents and registered voters of New Jersey. Also noted was the fact that the electricity bills arising from the Oppenheims' New Jersey address were greater than the electricity bills generated from the apartment at issue. Relying on Ayres (supra), an issue of fact was found to exist as to whether the Oppenheims "are actually tenants living" in the apartment. The submissions in the instant motion do not indicate that the Oppenheims' connections to New Jersey no longer exist. This Court notes that like plaintiff in Ayres, the Oppenheims, had returned to the subject apartment. Thus, it cannot be said that the factual allegations, including the additional factual allegations herein, resolve the issue as to "whether the Oppenheims are actually tenants living in the apartment being renovated," as explained by J. Feinman.
However, as to the additional issue precluding summary judgment, Judge Feinman determined that Routier was not dispositive since an issue of fact existed as to the "what are the final intentions of the Oppenheims." In other words, so long as an issue remained as to "what are the final intentions of the Oppenheims," Routier was not dispositive.
In Routier v Waldeck ( 184 Misc 2d 487, 708 NYS2d 270 [N.Y.Dist.Ct. 2000]), the plaintiff, an unlicensed contractor, performed substantial home improvements to defendant's two-family house and sought payment for his services. Plaintiff argued that defendant was not an "owner" as defined under the N.Y.C. Administrative Code. Defendant, on the other hand, argued that the statute encompassed those who never resided in the home, or never intended to reside in the home, but, rather, those who purchase a home with the intent of refurbishing it and selling it for profit. After reviewing various cases, the Court concluded that the term "owners" as defined in the N.Y.C. Administrative Code applied to individuals who reside in the subject premises and those who intend to reside in the subject premises after the home improvements are completed. It did not apply, according to the Court, to speculators and real estate investors who have no intention of residing in the subject premises. Relying on Routier, Judge Feinman found summary judgment and dismissal unwarranted in light of the issue regarding the Oppenheims' final intentions.
It is noted that Mrs. Oppenheim previously claimed that she and her husband intended to reside at the apartment once the renovation work was completed (Decision, page 5). However now, the Oppenheims have returned to the apartment, and incurred electricity, telephone, and cable expenses in connection with their residence in the apartment.
Although the previous motion was declared "premature," in light of the new factual allegations, it cannot be said that an issue remains as to what are the Oppenheims' final intentions upon completion of the renovation work. As an "owner" can be established by satisfying one of the two criteria, as explained by Judge Feinman, it can now be said that the Oppenheims are "owners."
Although B G claims that it would be prejudicial and unjust "to allow the Oppenheims to use their moving into the Premises for purposes of the instant motion as the basis of their Motion to Renew since the Court has already decided the issue of owners' based on intentions," this Court is bound by the issues of law and fact as framed by the previous Court (Judge Feinman), which notably, were not appealed by the parties.
Nor was Judge Feinman required to expressly permit the movants leave to renew as a predicate to the instant motion, as B G suggests (Plaintiff's Memo of Law, page 4).
Therefore, the motion by the Oppenheims and 860 Fifth Avenue is granted, and consequently, 860 Fifth Avenue's counterclaim for willful exaggeration of the lien is moot. As such, B G's cross-motion to dismiss 860 Fifth Avenue's counterclaim for willful exaggeration is granted.
Thus, based on the foregoing, it is hereby
ORDERED that the motion by 860 Fifth Avenue and the Oppenheims to dismiss the complaint in Action #
1, Index No. 600326-2005, and to dismiss the cross-claims by B G in Action #
2, Index No. 113174-2005 is granted, and B G's mechanic's lien shall be expunged; and it is further
ORDERED that the Notice of Mechanic's Lien filed by B G Mechanical Corp. with the New York County Clerk's Office on October 15, 2004 against the property known as 860 Fifth Avenue, New York, New York, Block 1382, Lot 69, is hereby vacated, canceled, and discharged of record and the New York County Clerk is hereby directed to mark said lien discharged on the lien docket together with a reference to this Order; and it is further
ORDERED that the Oppenheims' claim for willful exaggeration of lien are withdrawn as against B G, if any; and it is further
ORDERED that the cross-motion by B G is granted and the counterclaims by 860 Fifth Avenue are dismissed; and it is further
ORDERED that B G serve a copy of this order with notice of entry upon all parties within 20 days of entry; and it is further
ORDERED that the plaintiffs Ess Vee and SBA file the note of issue in Action #
2 no later than April 4, 2008.
This constitutes the decision and order of the Court.