Opinion
Index No.: 525258/2020
05-06-2021
In the Matter of the Application of MONTFORT BROTHERS, INC., Petitioner, For a Judgement Pursuant to Article 78 of the Civil Practice Law and Rules v. NANCY T. SUNSHINE, ESQ. in her official Capacity as CLERK, KINGS COUNTY, Respondent.
NYSCEF DOC. NO. 14 At an IAS Term, Part 66 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 6th day of MAY, 2021. PRESENT: HON. RICHARD VELASQUEZ Justice. Decision and Order The following papers numbered 2 to 11 read on this motion:
| Papers | NYSCEF DOC #'S |
|---|---|
| Notice of Motion/Cross-Motion/Order to Show CauseAffidavits (Affirmations) Annexed | 2- 5 |
| Opposing Affidavits (Affirmations) | 8-10 |
| Reply | 11 |
After having heard oral argument on APRIL 5, 2021 and a review of the forgoing submissions herein, the Court finds as follows:
Petitioner moves for a judgment pursuant to Article 78 Compelling Nancy T. Sunshine, Esq. in her official capacity as Clerk, Kings County to docket the Notice of Mechanics lien, dated October 29, 2020 annexed to the Verified Petition and Complaint as Exhibit A nunc pro tunc to November 4, 2020 on the property located at 350 Bergen Street, Brooklyn, NY 11217, Block: 389, Lot: 30; and b) Declaring that the Notice of Mechanics lien, dated October 29, 2020 annexed to the Verified Petition and Complaint as Exhibit A was timely filed on November 4, 2020. (MS#1). Respondents oppose the same contending the decision was not arbitrary or capricious.
Facts
On or about November 4, 2020, The Kings County Clerk's Office received by mail from petitioner a notice of mechanic's lien which petitioner sought to have filed and recorded. (See NYSCEF Doc. No. 9 at ¶ 9). The notice of mechanic's lien, dated October 29, 2020, was for work last performed on March 12, 2020 on real property located in Kings County. (See NYSCEF Doc. No. 1 Petition Ex. A). The notice was accompanied by two checks, made payable to The Kings County Clerk's Office, in the amount of $35 and $10, respectively. (See NYSCEF Doc. No. 1 Petition Exs. A and D). It is alleged by the respondent, The Kings County Clerk's Office that because neither check was for the sum of $30, the amount required by CPLR 8021 (b) (4) as payment for filing a notice of mechanic's lien in New York City, The Kings County Clerk's Office rejected the submission and returned the notice, and accompanying checks, to petitioner, along with a note providing the reason for the rejection. (See NYSCEF Doc. No. 9 Sunshine Aff. at ¶ 9).
It is further alleged that on or after November 13, 2020, The Kings County Clerk's Office received by mail from petitioner the aforementioned notice of mechanic's lien dated October 29, 2020 which petitioner sought to have filed and recorded. (See NYSCEF Doc. No. 9 Sunshine Aff. ¶ 10; NYSCEF Doc. No. 1 Petition Ex. E). Pursuant to said notice, the last day that the work was performed at the project was March 12, 2020 -- more than eight months prior to November 13, 2020 the date that the lien was being received by The Kings County Clerk's Office. (See NYSCEF Doc. No 9 Sunshine Aff. ¶ 10). On November 16, 2020, the notice was returned to the petitioner's legal representative with a written explanation from The Kings County Clerk's Office, advising that the notice was rejected for being "past the date of filing as per statute of limitations 8 months." (See Id.; see also NYSCEF Doc. No 1 Petition Ex. F).
Thereafter, Petitioner commenced this proceeding to contest the Kings County Clerk's decision to reject petitioner's November 4, 2020 submission on the ground that it was not accompanied by the statutory fee. (See NYSCEF Doc. No. 1 Petition ¶ 1 and p. 6). Petitioner does not contest the Kings County Clerk's decision to reject the November 13, 2020 submission on statute of limitation grounds.
Discussion
Petitioner contends throughout his petition that the Kings County Clerk's Office was closed. Petitioner contends that because The Kings County Clerk's Office was closed to the public as result of the Covid 19 pandemic they were unable to appear at The Kings County Clerk's Office in person and was thereby precluded from immediately addressing the defect in the filing. Petitioner also claims that on November 4 2020 upon determining that the notice of mechanic's lien was not accompanied by the statutory fee, The Kings County Clerk's Office should have telephoned its attorney for instructions on how to handle the $35 check. (See NYSCEF Doc. No. 1 Petition § 17 and 18).
Contrary to petitioner's assertion The Kings County Clerk's Office was not and is not closed to the public. The Kings County Courthouse where The Kings County Clerk's Office is located at all relevant times was open to the public, and a person seeking to file in person a notice of mechanics lien at could do so. Persons filing were not permitted to enter room 189, however a representative was available at the entrance to Room 189 to review the notice and if found to be in compliance with statutory requirements, accept it on behalf of The Kings County Clerk's Office. As such, the petitioner could have filed the Notice of Mechanics lien in person, and made any immediate corrective action that may have been required had they chosen to do so. (See NYSCEF Doc. No. 9 Sunshine Aff. ¶ 7).
Pursuant to CPLR § 7803 "The only questions that may be raised in a proceeding under this article are: ... 3. whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed; ...". NY CPLR 7803 (McKinney). The Court of Appeals explained the nature of the arbitrary and capricious standard in Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 1974, 34 NY2d 222, 356 NYS2d 833, 313 NE2d 321: "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts." Id. at 231, 356 NYS2d at 839, 313 NE2d at 325. The question, said the Court, is whether the determination has a "rational basis." Id. In the present case Petitioner fails to demonstrate that King's County Clerk's determination was arbitrary and capricious or an abuse of discretion. As previously stated above "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts." Id. at 231, 356 NYS2d at 839, 313 NE2d at 325. No such showing has been made in the present case.
Moreover, in order to obtain a writ of mandamus to compel a government officer to perform an act which the law requires them to perform, the petitioner must have a clear legal right to the performance of that act. See Matter of Association of Surrogates and Supreme Ct. Reporters within City of N.Y. v Bartlett, 40 NY2d 571, 574, 357 NE2d 353, 388 NYS2d 882 (1976). A clear right is one that is free of reasonable doubt or controversy, see Id. at 574; Matter of Altamore v. Barrios-Paoli, 90 NY2d 378, 683 NE2d 740, 660 NYS2d 834, 1997 NY Slip Op 05592 (1997) (stating that mandamus is available "to compel acts that officials are duty-bound to perform"), such as one that is fixed as a matter of law. See Matter of Brusco v Braun, 84 NY2d 674 at 680, 645 NE2d 724, 621 NYS2d 291 (1994) ("The statute not only commands an action, it dictates the result."); Matter of Morrison v New York State Div. of Hous. and Community Renewal, 241 AD2d 34 at 39, 672 NYS2d 2, 1998 NY Slip Op 02850 (1 st Dept. 1998) (the right may be "premised upon specific statutory authority"), revd on other grounds 93 NY2d 834 (1999); See Matter of Coombs v Edwards, 280 NY 361 at 364, 21 NE2d 353 (1939) ("The burden is thrown on the applicant to demonstrate the necessity and propriety" of a mandamus to compel). Where the right to performance is predicated upon the existence of a fact, satisfaction of that factual predicate must be established before the legal act can be compelled. See Matter of Brusco v Braun, 84 NY2d 674 at 680, 645 NE2d 724, 621 NYS2d 291 (1994). Where the petitioner cannot establish that he has a clear right to the performance sought, the petition must be denied. Matter of Morrison v New York State Div. of Hous. and Community Renewal, 241 AD2d 34 at 39, 672 NYS2d 2, 1998 NY Slip Op 02850 (1st Dept. 1998), revd on other grounds 93 NY2d 834 (1999); McKillop v Lippman, 9 Misc 2d 635; 167 NYS2d 120 (Sup Ct, NY County 2005).
It is well established, the procedure for accepting and filing a notice of mechanic's lien is governed by the Lien Law and the Civil Procedure Law and Rules. Pursuant to Section 10 of the Lien Law, a notice of mechanic's lien may be filed in the County Clerk's Office "at any time during the progress of work and the furnishing of materials or within eight months after completion of the contract, or final performance of the work, or the final furnishing of materials, dating from the last item of work performed or materials furnished," and provided the notice is filed in the Clerk's Office for the county where the property is located. Lien Law § 10 (1). Further, section 8021 (b) (4) of the Civil Practice Law and Rules requires the payment of a statutory fee of $30 "in advance" for filing and recording the notice of mechanic's lien. CPLR 8021 (b) (4). The Kings County Clerk's Office only accepts payment of the fee in the exact amount set by the statute. (See NYSCEF Doc. No. 9 Sunshine Affm. ¶ 5). Consistent with the aforementioned requirements, a notice of mechanic's lien may be submitted to The Kings County Clerk's Office, located at 360 Adams Street, Room 189, Brooklyn, New York, in person or by mail. (See NYSCEF Doc. No. 9 Sunshine Aff. ¶ 6). Since March 16, 2020, parties wishing to file a notice of mechanic's lien in person at The Kings County Clerk's Office may enter the courthouse to make the filing, but are not permitted in Room 189 where The Kings County Clerk's Office is located. Instead, in-person filers are met by a The Kings County Clerk's Office representative at the entrance to Room 189 where the proposed filing is reviewed for statutory compliance. (See NYSCEF Doc. No. 9 Sunshine Aff. ¶ 7). Notices which do not comply with the requirements of Section 10 of the Lien Law or are not accompanied by the filing fee required by CPLR 8021 are not accepted for filing and returned to the filer with an explanation for the rejection. (See NYSCEF Doc. No. 9 Sunshine Aff. ¶¶ 6 & 7).
Here, New York law only authorizes the Kings County Clerk to accept payment of $30 for filing and recording a notice of mechanic's lien. CPLR 8021 (b) (4) specifically requires the payment of a statutory fee of $30 "in advance" for filing and recording a notice of mechanic's lien. CPLR 8021 (b) (4). Given the clear and unambiguous language of CPLR, The Kings County Clerk's Office properly rejected petitioner's tender of a check for the sum of $35. See Matter of Merscorp, Inc. v Romaine, 24 AD3d 673 at 674, 808 NYS2d 307, 2005 NY Slip Op 09728 (2 Dept 2005) (holding that the County Clerk becomes obliged to perform the ministerial duty when the prerequisites of the statute creating the duty are satisfied and the proper fee is paid). As such, the Petitioner has failed to establish they have a clear legal right to the performance of that act requested for this Court to compel because they have not established the Notice complied with the requirements of Section 10 of the Lien Law and were accompanied by the filing fee required by CPLR 8021.
Accordingly, Petitioner's request is hereby denied, for the reasons stated above. (MS#1). This constitutes the Decision/Order of the Court. Date: MAY 6, 2020
ENTER FORTHWITH:
/s/_________
RICHARD VELASQUEZ, J.S.C.