Summary
holding that Executive Order 202.8 tolled timetable for filing extensions under Lien Law § 17
Summary of this case from D.M. v. N.Y.C. Dep't of Educ.Opinion
EF2021-268027
04-27-2021
In the MATTER OF the Application of 701 RIVER STREET ASSOCIATES LLC, Owner and Depositor-Petitioner, to discharge mechanic's lien and release sums paid into Court in accordance with Lien Law as to such mechanics’ lien of Kennedy Property Maintenance LLC d/b/a KPM Restoration, Lienor-Respondent.
COUCH WHITE, LLP, (Jennifer K. Harvey, Esq.), Albany, Attorneys for the Petitioner DREYER BOYAJIAN, LLP, (John J. Dowd, Esq.), Albany, Attorneys for the Respondent
COUCH WHITE, LLP, (Jennifer K. Harvey, Esq.), Albany, Attorneys for the Petitioner
DREYER BOYAJIAN, LLP, (John J. Dowd, Esq.), Albany, Attorneys for the Respondent
Patrick J. McGrath, J. Petitioner, 701 River Street Associates, LLC ("701 River Street" or "Petitioner"), brings the instant proceeding to discharge the Notice of Mechanic's Lien filed by respondent KPM Restoration ("KPM" or "Respondent") pursuant to Lien Law § 17. Respondent opposes the petition and Petitioner submitted a memorandum in further support of the petition.
On December 9, 2019, Respondent filed a mechanic's lien in the sum of $229,105.25 (the "Lien") against the interests of Petitioner for construction work on Petitioner's property located at 701 River Street in Troy, New York (tax map Sec. 90.70, Block 5, Lot 8). On December 20, 2019, Petitioner discharged the Lien by deposit and payment in the amount of $249,724.73, which included interest to the time of deposit. On May 4, 2020, Respondent partially released the Lien in the amount of $95,850.00. On June 29, 2020, Petitioner sought and obtained a release of the aforementioned partial release in the sum of $93,933.00. Therefore, the balance remaining on deposit to continue to secure the undischarged remainder of the Lien was $155,791.73.
Petitioner contends that Respondent's failure to adhere to the strict time line requirements set forth in Lien Law § 17 results in a lapse of the Lien by operation of law as of December 9, 2020, since Respondent failed to foreclose the Lien or file an extension of Lien within one year from the filing of the notice of Lien. Petitioner asks the Court to release the associated monies currently deposited with the Rensselaer County Bureau of Finance in the amount of $155,791.73, plus interest and net fees in order to discharge the Lien against Petitioner's property.
Respondent contends that the one-year statutory timetable for its compliance with the Lien Law requirements was tolled by Governor Andrew Cuomo's Executive Order ("EO") 202.8, issued on March 20, 2020, in response to the COVID-19 pandemic and which tolled commencement, filing or service deadlines of legal actions during the pandemic. Respondent notes that EO 202.8 was subsequently extended up to and until November 3, 2020, by a series of subsequent EOs, namely EO 202.14, EO 202.28, EO 202.38, EO 202.48, EO 202.55, EO 202.55.1, EO 202.60, and EO 202.67 (collectively, the "EOs"). Pursuant to EO 202.72, tolling was no longer in effect as of November 4, 2020. Respondent argues that between March 20, 2020 and November 3, 2020, 228 days passed and therefore, the tolling period extended Respondent's deadline to commence an action to foreclose its Lien or to further extend the Lien until July 25, 2021.
Respondent argues that several courts have considered the effect of the EOs and held that the EOs created a lawful toll. Respondent relies primarily on two cases. In Matter of M.R., 69 Misc. 3d 368, 374, 130 N.Y.S.3d 252 (Fam. Ct., Kings County 2020), the court stated that "Executive Order 202.8 ... tolls [the] limitation period [to file a juvenile delinquency petition] ... [and the] effect of a toll is to stay the running of the statute of limitations during the time that the toll is in effect and the statutory period resumes running upon the termination of the toll." In Kugel v. Broadway 280 Park Fee LLC, NYLJ, Jan. 28, 2021 at p.17, col.2 (Sup. Ct., New York County 2021), the court states that "the series of Executive Orders that Governor Cuomo issued during the current pandemic tolled the statute of limitations by the plain meaning of these Executive Orders ... [Executive Order 202.67] ... at multiple points, indicates that what has occurred through his orders is the ‘tolling’ [of] the statute of limitations."
Respondent also cites a number of cases wherein courts have discussed the EOs, however the holdings in many of these cases are narrowly applicable to criminal proceedings. In People ex rel. Hamilton v. Brann, 67 Misc. 3d 1205(A), 2020 N.Y. Slip Op. 50392(U), *5, 2020 WL 1695541 (Sup. Ct., Bronx County 2020) the court held that "[t]he language of this order [EO 202.8] sweeps up every procedural time limit ... in the Criminal Procedure Law". Respondent further cites to an Appellate Division, Second Department case, which found that EO 202.8 temporarily suspended the operation of CPL § 180.80. Respondent also cites to People ex rel. Nevins v. Brann, 67 Misc. 3d 638, 647-648, 122 N.Y.S.3d 874 (Sup. Ct., Queens County 2020), which discusses the applicability of EO 202.8 to CPL § 180.80, and held that "there is no particular formula that the Governor must follow when he suspends laws under section 29-a of the Executive Law ; he simply must indicate with specificity which laws are being suspended[,] [a]nd ... the Governor did that in Executive Order 202.8."
Respondent cites to People ex. Rel. Mulry v. Franchi, 182 A.D.3d 562, 120 N.Y.S.3d 790 (2d Dept. 2020), however upon review it appears the citation intended may have been People ex rel. Mulry v. Franchi, 182 A.D.3d 562, 120 N.Y.S.3d 790 (2d Dept. 2020).
Respondent further argues that Petitioner's reliance on Emerald Servs. Corp. v. Empire Core Group LLC, 2021 N.Y. Slip Op. 30394(U), 2021 WL 465978 (Sup. Ct., New York County 2021), as further discussed below, is misplaced as that court did not provide analysis of the effect of the EOs. Respondent also argues that the facts in Emerald are distinguishable from the issue in this matter since the plaintiff's motion in Emerald was denied for a failure to follow a procedural law.
Petitioner replies that EO 202.67 superseded all prior EOs and stated that the time period between March 20, 2020 and November 3, 2020 be treated as a "temporary suspension", and therefore was not a toll. Petitioner notes that the argument regarding temporary suspension versus tolling surfaced during the September 11, 2001 terrorist attacks and Hurricane Sandy in 2012, and that the courts rejected the "toll" argument and held that the executive orders served as temporary suspensions in those instances.
Petitioner next argues that the few courts that have faced this issue during the pandemic have determined that the EOs granted a temporary extension and not a toll. Petitioner primarily relies on the Emerald case, a decision which also dealt with a mechanic's lien ( 2021 N.Y. Slip Op. 30394(U) at 1 ). In Emerald , the plaintiff-lienor failed to file the statutory notice of pendency to foreclose on a mechanic's lien and failed to seek an extension of their lien pursuant to Lien Law § 17 prior to the expiration of the statutory period ( id. at 1-2 ). The Emerald plaintiff moved to have the time frame for the filing of an extension tolled pursuant to the EOs, however the court denied the motion on the grounds that the plaintiff filed its request after November 3, 2020, the date upon which the EOs expired, and that the court lacked power in its discretion to grant the motion ( id. at 2 ). The Emerald court further emphasized that the plaintiff's arguments were without merit as it had filed the summons and complaint to foreclose during the pendency of the EOs ( id. at 4 ). Petitioner also cites Nationwide Affinity Ins. Co. of Am. v. Cruz, 2021 N.Y. Slip Op. 30181(U), 2021 WL 214286 (Sup. Ct., New York County 2021) and draws similarities between the underlying facts of Nationwide and the instant case, primarily alleging that the court, in both cases, maintains a statutory obligation to strictly enforce the statutory time period.
Petitioner argues that reliance on either of Respondent's cited cases is inapposite. Petitioner asserts that the authorization sought through EO 202.8 in Kugel was discretionary in nature, not procedural as the issue is here, and that permission to file the late notice of claim had been granted in Kugel on the grounds that timely notice had already been filed. Additionally, Petitioner argues that reliance on Matter of M.R. is misplaced on two grounds: first due to the significant procedural differences between criminally prosecuting a juvenile defendant and foreclosing/extending a lien; and second, the fact that the event triggering the deadline in Matter of M.R. occurred during the EO suspension period, and not after. Discussion
Lien Law § 17, titled "Duration of lien" provides, in pertinent part, that: "[n]o lien specified in this article shall be a lien for a longer period than one year after the notice of lien has been filed, unless within that time an action is commenced to foreclose the lien, and a notice of the pendency of such action ... is filed with the county clerk of the county in which the notice of lien is filed ... or unless an extension to such lien ... is filed with the county clerk of the county in which the notice of lien is filed within one year from the filing of the original notice of lien, continuing such lien and such lien shall be redocketed as of the date of filing such extension." It is well-established that a mechanic's lien will automatically expire by matter of law one year after initial filing, unless an extension is sought, an action is commenced to foreclose the lien, and a notice of pendency is filed within the statutory period (see Aztec Window & Door Mfg. Inc. v. 71 Vill. Rd., LLC , 60 A.D.3d 795, 796, 875 N.Y.S.2d 528 [2d Dept. 2009] ; MCK Bldg. Assoc., Inc. v. St. Lawrence Univ. , 5 A.D.3d 911, 912, 773 N.Y.S.2d 475 [3d Dept. 2004] ; see also Matter of Cook v. Carmen S. Pariso, Inc. , 287 A.D.2d 208, 211, 734 N.Y.S.2d 753 [4th Dept. 2001] ).
Executive Law § 29-a(1) was enacted in 1978 and amended, as is pertinent here, on March 3, 2020, in response to the COVID-19 pandemic and states that, "the governor may by executive order temporarily suspend specific provisions of any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster." Furthermore, Executive Law § 29-a (2)(d) provides that, "the order may provide for such suspension only under particular circumstances, and may provide for the alteration or modification of the requirements of such statute, local law, ordinance, order, rule or regulation suspended, and may include other terms and conditions". The powers of Executive Law § 29-a have limitations and Subsection 2(a) provides that, "no suspension shall be made for a period in excess of thirty days, provided, however, that upon reconsideration of all of the relevant facts and circumstances, the governor may extend the suspension for additional periods not to exceed thirty days each."
EO 202.8 states, in pertinent part "I hereby temporarily suspend or modify, for the period from the date of this [EO] through April 19, 2020 the following: ... to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding ... is hereby tolled from the date of this executive order until April 19, 2020" (emphasis added). EO 202.14, 202.38, and 202.55.1 all contain the following language "continu[ing] the suspensions and modifications of law, and any directives, not superseded by a subsequent directive, made by [EO] 202 and each successor [EO] to 202, for thirty days". The remaining EOs also contain similar or identical language, in addition to specific mentions of tolling. EO 202.48 specifically addresses the tolling of CPL § 190.80. Tolling is discussed in EO 202.55 with regard to certain General Business Law subsections, and specific NYCRR provisions. EO 202.60 states, in pertinent part "[t]he suspension contained in [EO] 202.8, as continued and modified most recently in [EO] 202.48 and 202.55 and 202.55.1, is hereby amended to provide that the tolling of civil statutes of limitation shall be lifted as it relates to any action to challenge the approval of ... affordable housing or space for use by not-for-profit organizations."
On October 4, 2020, EO 202.67 was issued and states, "[t]he suspension in [EO] 202.8, as modified and extended in subsequent [EOs], that tolled any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding as prescribed by the procedural laws of the state ... is hereby continued, as modified by prior executive order, provided however, for any civil cases, such suspension is only effective until November 3, 2020, and after such date any time limit will no longer be tolled " (emphasis added).
While both parties cite case law that addresses the applicability of the EOs, neither party cites Foy v. State of New York, 71 Misc.3d 605, 144 N.Y.S.3d 285 (Ct. Cl., February 16, 2021), which was decided during the instant submission period and appears to be the "lone case" to address the ‘toll vs. suspension’ issue, and concluded that the Governor could toll the statute of limitations ( Lopez-Motherway v. City of Long Beach , 2021 WL 965158, 2021 U.S. Dist. LEXIS 48597 n. 9 [E.D. N.Y., March 15, 2021, No. 2:20-cv-5652] ). In Foy , the court dealt with a claim for reinstatement to employment that was not filed and served timely in accordance with the statutorily prescribed 90-day time period ( 71 Misc.3d 605, 144 N.Y.S.3d 285 ). The Foy court noted that, "[a] toll suspends the running of the applicable period of limitation for a finite time period, in this instance, 30 days, and ‘[t]he period of the toll is excluded from the calculation of the time in which the [claimant] can commence an action’ " ( id. at 71 Misc.3d 605, 144 N.Y.S.3d 285, 288, quoting Chavez v. Occidental Chem. Corp. , 35 N.Y.3d 492, 505, 133 N.Y.S.3d 224, 158 N.E.3d 93 [2020] ). The Foy court found that EO 202.8 (the original) and EOs 202.67 and EO 202.72 (the last two EOs addressing time limits for the commencement filing or service of a legal action) are clear in providing a toll, and not a suspension ( id. ). The Foy court further reviewed the construction of a statute and the intent of the legislature as they relate to Executive Law § 29-a, and found that the language in Subsection 2(d) is clear "that something other than a straightforward suspension of a statute is authorized" ( id. at 3–4, 71 Misc.3d 605, 144 N.Y.S.3d 285, 288 ). Furthermore, the Appellate Division, Second Department has specifically stated that, "Executive Order (Cuomo) No. 202.8 ( 9 NYCRR 8.202.8 ), issued on March 20, 2020, in response to the COVID-19 pandemic ... generally tolled limitations periods" ( Matter of Echevarria v. Board of Elections in the City of NY , 183 A.D.3d 857, 858, 122 N.Y.S.3d 904 [2d Dept. 2020] ). While the Emerald case dealt with a mechanic's lien, this court agrees with Respondent that the Emerald court did not provide analysis of the effect of the EOs and therefore, this court is in agreement with the analysis of the Foy court. As such, the court finds that the EOs provided for tolls, such tolls were authorized, and therefore the Lien has not lapsed.
Therefore, in accordance with the foregoing, it is hereby
ORDERED that the petition is dismissed.
This shall constitute the Decision and Order of the Court.