Opinion
15838/09.
Decided March 15, 2010.
Dorcas Ramos — Pro se, Plaintiff Attorney.
Kenneth Frenkel, Esq, Defendant Attorney.
Dorcas Ramos, as trustee for Gold Mana, Inc. (Gold), plaintiff, pro se, has brought this motion seeking (1)summary judgment to foreclose a lien upon the premises at 145 Bleeker Street and (2) requesting a temporary restraining order "enjoining the defendant from destroying the said premises until satisfying the mechanic lien filed.The defendants, 145 Bleeker Street Corp. (Bleeker) and Patrick Ivory (Ivory) cross move for an order (1) vacating, canceling and discharging the notice of Mechanics lien filed by Gold Mana Inc. against Bleeker;(2) finding that Gold Mana Inc. willfully exaggerated the amount of its liens and as such is liable to the defendant Corp for $242,500.00 plus costs or(3) alternatively, that the Court issue a directive to Gold Mana Inc. to give a statement pursuant to Lien Law § 38. Defendants also seek (4) dismissal of the summons and complaint for specific performance of the contract and money damages and (5) denial of the plaintiff's motion requesting the foreclosure of a mechanic's lien and a temporary restraining order preventing the defendant from repairing its property or, (6) in the alternative, providing defendant leave to file an Answer.
In her affidavit in opposition, to the cross motion, Dorcas Ramos submits that the defendants failed to timely answer the summons and complaint, thereby entitling her to a default judgment, noting that "the defendant had not set forth any meritorious defense or excusable default in his motion." Ms. Ramos also contends that the motion was not served upon her properly "pursuant to CPLR." The defendants reply by attorney's affirmation, repeating their arguments and adding that service of the summons and complaint was defective in that it was improperly served on defendants.
While it is difficult to determine much of what happened between these parties, some things are apparent. There was a contract of sale which appears to have been signed by both side on or about July, 2006; there was never a closing, although about two and one half years passed from the contract signing to the commencement of this action; the plaintiff thinks that she has a right to be on the premises and to purchase same; the defendants never sold the premises to anyone else; a time is of the essence letter was sent on or about November 7, 2008; the notice of mechanic's lien was allegedly serviced on January 19, 2009 and filed on January 21, 2009; this action was commenced in June 2009 and this order to show cause was signed July 21, 2009.
SUMMARY JUDGMENT
The plaintiff moves for summary judgment and as movant must make a prima facie showing of entitlement, for it is well settled that a motion for summary judgment is a drastic remedy which will be granted only when it is clear that there are no triable issues of fact ( See Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 and Andre v. Pomeroy, 35 NY2d 361, 362 NYS2d 131). A prima facie showing of entitlement to judgment as a matter of law must be demonstrated by the movant for summary judgment, whereupon the party in opposition to said relief must come forward with proof in evidentiary form establishing that issues of fact are present or must demonstrate an acceptable excuse for its failure to do so (See Zuckerman v. City of New York, supra, 49 NY2d 557; Davenport v. County of Nassau, 279 AD2d 497, 719 NYS2d 126 (2d Dept.), and Maviglia v. Inapart Properties Corp., et.al., 149 AD2d 482, 540 NYS2d 716 (2d Dept. 1989)). In arriving at the decision whether to grant or to deny such a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party, which requires it to give that party all of the reasonable inferences which can be drawn from the evidence (See McGill v. Bohack Corp., 69 AD2d 853, 415 NYS2d 462 (2d Dept. 1979); Negri v. Stop Shop, Inc., 65 NY2d 625, 491 NYS2d 151). By the same token, it must be borne in mind that conclusory and speculative allegations are insufficient to defeat a motion for summary judgment (See Maviglia v. Inapart Pproperties Corp., et.al., supra, 149 AD2d 482,). If a prima facie case has been shown, the burden shifts to the non moving party to establish material issues of fact. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986)) There is no question, however, but that summary judgment should be denied in the face of triable issues of fact (See Freese v. Schwartz, 203 AD2d 513, 611 NYS2d 37, 2d Dept.).
In the case at bar, the motion for summary judgment is drawn and supported in-artfully. Ms. Ramos, a pro se litigant, does not appear to understand the requirements for showing entitlement to such a judgment. Her affidavit does little more than recite the relief she is seeking; the exhibits consist of copies of the notice of mechanic's lien which she filed, the July,2006 contract of sale for the premises at 145 Bleeker Street between herself and Bleeker and the Summons and Complaint in this matter. It cannot be said that a prima facie showing of entitlement to judgment as a matter of law has been demonstrated by the movant. Defendants do not ask for summary judgment and make no attempt to show that they are so entitled. As stated above, the plaintiff did not sustain her burden of showing that she is entitled to summary judgment as a matter of law. This Court must therefore deny that portion of the motion which request such relief. The motion for summary judgment is denied.
TEMPORARY RESTRAINING ORDER
The CPLR § 6301 sets forth the grounds for a temporary restraining order. It states, in relevant part: "A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do,. . . .or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which,. . . .would produce injury to the plaintiff. A temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had." (emphasis added.) The plaintiff has provided no basis for the granting a temporary restraining order, in as much as, there are no indices in these papers that the defendants will or are causing immediate and irreparable injury, loss or damage to the plaintiff. Nor is there any showing that they are destroying the premises at 145 Bleeker Street as the plaintiff avers. Thus, the request for a temporary restraining order must be denied.
MECHANIC'S LIEN
The defendants contend that the mechanic's lien, filed by Dorcas on January 21, 2009 must be "cancelled, discharged and dismissed as fatally defective" because (1) it fails to "state with any particularity the labor performed and materials it purportedly furnished (supplied and installed) to 145 Bleeker Street Corp.;" (2) "it is not based on a contract to perform work. . . .[and] without an agreement and even without the Owner's consent;" (3) "[s]aid Mechanic's Lien was also frivolously filed in that the dates recited in the lien and verified by the Plaintiff are fraudulent;" (4) the plaintiff does not have a license to do home improvement work and is in violation of the Administrative Code of the City of New York § 20-387(a); (5) "the notice of lien was improperly served in that the method and address chosen by the lienor to serve was conspicuous service at 6PM on a vacant building, albeit the Subject Premises;" (6) "[t]he lien is void on account of willful exaggeration pursuant to section 39-a of the Lien Law." If the lien is not cancelled, discharged and dismissed, the defendants request that the Court require the plaintiff to provide them with an itemized statement pursuant to Lien Law § 38.
With regard to the purported defects on the face of the liens, New York Lien Law § 9 lists the information which must be contained on the notice of lien. Dorcas Ramos answered questions generally, and in as much as the statute sets forth a manner by which specificity can be learned, see Lien Law § 38, which requires the lienor to provide a statement on demand. Upon review, the Court determines that the notices of lien, as filed, constitute substantial compliance with the notice requirements.
As to the grounds, enumerated above as (2), (3), (4)and (5), the defendants have offered only self-serving conclusory statements with no facts substantiating their veracity. The Court is without sufficient information to make a determination of those issues. The issue of whether 145 Bleeker Street Corp. or Patrick Ivory consented to contractor's work on project cannot be resolved upon their motion to summarily vacate lien; it must await trial of foreclosure action. Pontos Renovation Inc. v. Kitano Arms Corp., 204 AD2d 87, 611 NYS2d 538 N.Y.A.D. 1 Dept.,1994. Where, as here, the dispute as to the validity of mechanic's lien goes beyond the face of the notice of lien it cannot be resolved on motion to discharge the lien prior to trial. Hi-Mike Water Systems, Inc. v. President Maintenance Corp., 2001 NY Slip Op. 50132(U) N. Y .Sup.,2001.
The contention that the mechanic's lien must fall because it was served at 6:00 pm rather than between nine o'clock in the forenoon and four o'clock in the afternoon is insufficient to vacate the lien at this point in the proceeding since it was noticed to the defendants and accepted, as evidenced by the Demand For Itemized Statement made on August 4, 2009 without raising objection to the manner of service. The defendants' time to answer had expired and no motion was made to challenge the service of the Notice of Mechanic's Lien prior to the cross motion made as a response to the plaintiff order to show cause. Bleeker and Ivory voluntarily accepted service of the Notice of Mechanic's Lien in their failure to answer the complaint and demand for an Itemized Statement. Analogous to service of process, a recipient of a Notice of Mechanic's Lien should, in order to be free of the effects improper service, make a motion to dismiss or pled an affirmative defense of the service failure. 2 N.Y.Prac., Com.Litig.in New York State Courts § 2:31 (2d ed.) Siegel, NY Prac. § 113 (4th ed.), McKinney's CPLR Rule 320.
The defendants also content that the lien must be discharged as it is void because of willful exaggeration as set forth in the Lien Law § 39-a. "A determination of willful exaggeration requires proof that the lienor deliberately and intentionally exaggerated the lien amount, see, Pratt Gen. Contrs. v. Trappey, 177 AD2d 566, 568 (2d Dept. 1991) The willful exaggeration of a notice of lien has been defined as an exaggeration which is intentional, deliberate, fictitious or fraudulent, see, Collins v. Peckham Road Corp et al., 18 AD2d 860, 861 (3d Dept. 1963).The burden is on the opponent of the mechanic's lien to show that the amounts set forth in the notice of lien were intentionally and deliberately exaggerated". Fidelity New York, FSB v. Kensington-Johnson, Corp. et al., 234 AD2d 263 (2d Dept. 1996)." Interstate Home Builders, Inc. v. D'Andrea Const., Inc. Not Reported in NYS2d, 2001 WL 1682795 August 14, 2001.
MOTION TO DISMISS/LEAVE TO ANSWER
Upon a motion to dismiss for failure to state a cause of action, the court must determine whether from the four corners of the pleading factual allegations are discerned which taken together manifest any cause of action cognizable at law. In determining such a motion, the court may freely consider additional facts contained in affidavits submitted by the plaintiff to remedy any defects in the complaint. Fitzgerald v. Federal Signal Corp. , 63 AD3d 994 (2d Dep't 2009) Otherwise stated, if from its four corners factual allegations are discerned that, taken together, manifest any cause of action cognizable at law, the motion will fail. Weiss v. Cuddy Feder, 200 AD2d 665, 606 NYS2d 766 (2d Dep't 1994). This motion to dismiss must fail. Though the plaintiff's papers are in-artful, it is discernable that factual allegations suggest that the defendants owe the plaintiff a significant amount of money. Whether a plaintiff can ultimately establish her allegations is not part of the calculus in determining a motion to dismiss. Farber v. Breslin , 47 AD3d 873 (2d Dep't 2008).
Upon denial of the motion to dismiss, Bleeker and Ivory request that the provide them with leave to file an Answer. But as noted by Dorcas Ramos, they have shown neither meritorious defense nor excusable default which would merit such allowance. The Court will hear arguments on whether the defendants are entitled to file an Answer on April 23, 2010.
This constitute the decision and order of this Court