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  • Integrated Project Delivery Partners, Inc. v. Susan L. Schuman Family Trust, Ilene Osherow, Susan Schuman Other Real Property - Foreclosure on Mechanic's Lien document preview
  • Integrated Project Delivery Partners, Inc. v. Susan L. Schuman Family Trust, Ilene Osherow, Susan Schuman Other Real Property - Foreclosure on Mechanic's Lien document preview
  • Integrated Project Delivery Partners, Inc. v. Susan L. Schuman Family Trust, Ilene Osherow, Susan Schuman Other Real Property - Foreclosure on Mechanic's Lien document preview
  • Integrated Project Delivery Partners, Inc. v. Susan L. Schuman Family Trust, Ilene Osherow, Susan Schuman Other Real Property - Foreclosure on Mechanic's Lien document preview
						
                                

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FILED: NEW YORK COUNTY CLERK 10/03/2017 02:27 PM INDEX NO. 160102/2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/03/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------------X INTEGRATED PROJECT DELIVERY PARTNERS, INC., Plaintiff, AFFIRMATION IN -against- SUPPORT SUSAN L. SCHUMAN FAMILY TRUST, ILENE Index. No.: 160102/2016 OSHEROW, SUSAN SCHUMAN, and “JOHN DOE 1” Through “JOHN DOE 10,” said parties being lienors who have yet to perfect their liens and being fictitious and unknown to the Plaintiff, Defendants. -----------------------------------------------------------------------------X PETER MOULINOS, an attorney duly admitted to practice law in the State of New York, hereby affirms under the penalties of perjury as follows: 1. I am the attorney of record for Defendants Susan L. Schuman Family Trust, Ilene Osherow and Susan Schuman (collectively hereinafter the “Defendants”), am fully familiar with the facts, claims and defenses set forth in this action and submit this Affirmation in Support of Defendants’ instant application to dismiss, pursuant to CPLR §§3211(a)(1) and (a)(7), the second, third, and fourth cause of action, found in the Verified Complaint, filed by Plaintiff Integrated Project Delivery Partners, Inc. (“Plaintiff”). 2. This dispute has arisen between the parties as a result of Plaintiff’s failure to properly perform construction and renovation work at Defendants’ residence. After Defendants raised substantive objections regarding the work which Plaintiff performed, 1 1 of 15 FILED: NEW YORK COUNTY CLERK 10/03/2017 02:27 PM INDEX NO. 160102/2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/03/2017 and refused to pay Plaintiff for its defective construction work, Plaintiff filed a mechanic’s lien against Defendants’ condominium unit and this lawsuit ensued. 3. Plaintiff commenced this action against Defendants by filing a Verified Complaint dated December 2, 2016 (“the Complaint”). Plaintiff sets forth four (4) causes of action in its Complaint. The first cause of action is one for breach of contract. The second cause of action claims that Defendants have been unjustly enriched as a result of the services performed by Plaintiff. In its third cause of action, Plaintiff seeks to foreclose a mechanics lien filed by Plaintiff on September 21, 2015 (“the Lien”). Lastly, in its fourth cause of action, Plaintiff claims that Defendants violated Section 79- a of the New York Lien Law under Article 3-A. A copy of the Complaint is attached as Exhibit A. 4. Defendants filed a Verified Answer to Plaintiff’s Complaint and essentially denied Plaintiff’s claims. Defendants also brought forth several counterclaims against Plaintiff for its defective work including claims of breach of contract, unjust enrichment and Plaintiff’s failure to adhere to Article 3-A of the Lien Law, specifically Lien Law §§39 and 39-a. A copy of Defendants’ Verified Answer and Counterclaims filed in this action is attached as Exhibit B. SUMMARY OF FACTS 5. In or about June 25, 2014, Plaintiff entered into an agreement (“the Agreement”) with Defendants whereunder Plaintiff agreed to perform certain plumbing, electrical, carpentry, tile, HVAC, and flooring work (the “Work”) at 161 2 2 of 15 FILED: NEW YORK COUNTY CLERK 10/03/2017 02:27 PM INDEX NO. 160102/2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/03/2017 Hudson Street, Apt 4B, New York, New York 10013 (the “Unit”), and to furnish labor, materials, and supplies related to such Work at the Unit. 6. Pursuant to the terms of the Agreement, the Work was to be performed in a professional workmanlike manner for the fixed amount of Nine Hundred Nine Thousand Twenty-Five ($909,025.00) Dollars. As a result of changes in the Work, mutually agreed upon by both parties, the Work was to be performed for the new fixed amount of Nine Hundred Seventy-Four Thousand Four Hundred Eighty and 63/100 ($974,480.63) Dollars. A copy of the Agreement is attached as Exhibit C. 7. Plaintiff commenced the Work pursuant to the terms of the parties’ agreement. Notwithstanding the foregoing, Plaintiff performed the Work in a careless, negligent and defective manner, through no fault of any of the Defendants. 8. The negligent and defective Work performed by Plaintiff included, but was not limited to the following: faulty and collapsing shelves in the children’s bedrooms; installation of damaged floor panels in the living/dining room, kitchen, office, master bedroom, and hallways; missing or defective light fixtures in the children’s bedrooms and in the master closet; chandeliers installed in an improper setting in the living/dining room; installation of damaged millwork around the kitchen appliances; improperly constructed wine cabinet in the living/dining room; installation of damaged shades in the master bedroom; poorly installed doors in the master bathroom, living/dining room, and in the children’s rooms; wooden parts left unpainted and untreated in the Unit; poorly installed toilet units and sinks in the children’s bathrooms; installation of damaged door handles in the powder room; faulty 3 3 of 15 FILED: NEW YORK COUNTY CLERK 10/03/2017 02:27 PM INDEX NO. 160102/2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/03/2017 tile grout-work in the kitchen, showers and bathrooms; deteriorated and peeling veneer-work; improperly installed audio/visual wiring throughout the Unit; wiring left exposed in the master bedroom and in the children’s bedroom; and an improperly repaired HVAC unit. 9. Despite demand by the individual Defendants that Plaintiff repair and remedy the defects in the Work and the damage to the Unit, Plaintiff refused to properly repair and remedy such defects and damage. Moreover, Plaintiff failed to complete the full scope of the Work as required under its contract with Defendants. 10. As a direct and proximate result of Plaintiff’s failure to properly perform and complete the Work, Defendants were caused to incur additional costs and expenses to repair and remedy the defective Work performed by Plaintiff and the damage to the Unit. 11. In addition, Plaintiff excessively and improperly charged Defendants for the Work, presented fraudulent and false invoices to Defendants, falsely represented to Defendants that Plaintiff had performed the Work in accordance with the Agreement and wrongfully claimed that Plaintiff was entitled to payment for performing the Work. 12. In reliance on Plaintiff’s misrepresentations that the Work at the Unit was being performed in accordance with the terms of the Agreement, Defendants provided payments to Plaintiff in the sum of Nine Hundred Twenty-Six Thousand Two Hundred Thirty and 34/100 ($926,230.34) Dollars. After Defendants discovered that the Plaintiff’s work was not in accordance with the terms of the Agreement, Defendants 4 4 of 15 FILED: NEW YORK COUNTY CLERK 10/03/2017 02:27 PM INDEX NO. 160102/2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/03/2017 objected to Plaintiff and withheld final payment. Defendants demanded that Plaintiff remedy its defective work however Plaintiff refused. 13. On or about September 21, 2015, Plaintiff filed a mechanic’s lien (“the Lien”) against the Unit, which wrongly claimed that the amount of Forty-Eight Thousand Two Hundred Fifty and 29/100 ($48,250.29) Dollars was owed by the Defendants to Plaintiff for unpaid labor and materials. A copy of the Mechanic’s Lien filed by Plaintiff is attached as Exhibit D. 14. Notwithstanding the foregoing, no such amount was owed by the Defendants given Plaintiff’s failure to properly perform and complete the Work and to repair the damage to the Unit caused by Plaintiff’s defective and negligent Work. Despite the demand by the Defendants that Plaintiff withdraw the improper Lien, Plaintiff has refused to withdraw the Lien against the Unit. 15. On or about September 19, 2016, Plaintiff filed an extension of the Lien against the Unit (the “Extended Lien”), alleging that Plaintiff is entitled to payment in the amount of Forty-Eight Thousand Two Hundred Fifty and 29/100 ($48,250.29) Dollars and is entitled to enforce its Lien against the Unit, Defendants and any other claimants or affected parties. A copy of the extension of the Lien is attached as Exhibit E. 16. Plaintiff, however, never filed a Notice of Pendency, as required by Lien Law §17, along with the commencement of this foreclosure action within the extended lien period. A copy of the Court’s docket reflecting the lack of a Notice of Pendency 5 5 of 15 FILED: NEW YORK COUNTY CLERK 10/03/2017 02:27 PM INDEX NO. 160102/2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/03/2017 filed in this action along with a copy of the condominium’s profile on the ACRIS system maintained by the City of New York is attached as Exhibit F. 17. On December 2, 2016, Plaintiff commenced this action, seeking payment in the amount of Forty-Eight Thousand Two Hundred Fifty and 29/100 ($48,250.29) Dollars for its alleged unpaid labor and materials. DEFENDANTS’ MOTION TO DISMISS MUST BE GRANTED 18. “On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972 (1994). 19. “In assessing a motion under CPLR 3211(a)(7) . . . the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one.” Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972 (1994) (Citation omitted; internal quotation marks omitted). 20. “In determining whether a complaint is sufficient to withstand a motion to dismiss pursuant to CPLR 3211(a)(7), the sole criterion is whether the pleading states a cause of action . . . . If from the four corners of the complaint factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, a motion to dismiss will fail.” Baker v. Andover Assoc. Mgt. Corp., 2009 WL 7400085, at *12 (Sup. Ct. 2009) (Citation omitted). 6 6 of 15 FILED: NEW YORK COUNTY CLERK 10/03/2017 02:27 PM INDEX NO. 160102/2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/03/2017 21. “The rule that the facts alleged are presumed to be true and are to be accorded every favorable inference which can be drawn therefrom on a motion addressed to the sufficiency of the pleadings . . . does not apply to allegations consisting of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence.” SRW Associates v. Bellport Beach Property Owners, 129 A.D.2d 328, 331, 517 N.Y.S.2d 741 (2nd Dept. 1987) (Citation omitted; emphasis added). 22. “Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law.” Leon v. Martinez, 84 NY2d 83, 88, 614 NYS2d 972 (1994). 23. “A motion to dismiss based on documentary evidence pursuant to C.P.L.R. §3211(a)(1) may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law.” Norment v. Interfaith Ctr. of New York, 98 A.D.3d 955, 955, 2012 WL 3980764 (2nd Dept. 2012) (Internal quotation marks omitted). “In order to be considered documentary evidence within the meaning of CPLR 3211(a)(1), the evidence must be unambiguous and of undisputed authenticity.” Id. (Internal quotation marks omitted). 7 7 of 15 FILED: NEW YORK COUNTY CLERK 10/03/2017 02:27 PM INDEX NO. 160102/2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/03/2017 PLAINTIFF’S SECOND CAUSE OF ACTION FOR UNJUST ENRICHMENT MUST BE DISMISSED 24. “The elements of a cause of action to recover for unjust enrichment are (1) the defendant was enriched, (2) at the plaintiff's expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered.” Gym Door Repairs, Inc. v Astoria Gen. Contr. Corp., 144 A.D.3d 1093, 1096, 43 N.Y.S.3d 381 (2nd Dept. 2016) (Internal quotation marks omitted). 25. “Recovery under quasi-contractual theories is, generally, inappropriate if there exists a valid and enforceable contract between the parties. It is impermissible . . . to seek damages in an action sounding in quasi contract where the suing party has fully performed on a valid written agreement, the existence of which is undisputed, and the scope of which clearly covers the dispute between the parties. . . . However, [w]here . . . there is a bona fide dispute as to the existence of a contract, or where the contract does not cover the dispute in issue, a plaintiff may proceed upon a theory of quasi-contract as well as breach of contract, and will not be required to elect his or her remedies.” AHA Sales, Inc. v. Creative Bath Products, Inc., 58 A.D.3d 6, 20, 867 N.Y.S.2d 169 (2nd Dept. 2008) (Citations omitted; internal quotation marks omitted). 26. “[T]he theory of unjust enrichment lies as a quasi-contract claim and contemplates an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties. . . . Thus, [a] cause of action predicated on a theory of implied contract or quasi-contract is not viable where there is an express agreement that governs the subject matter underlying the action.” Gym Door Repairs, Inc. v. Astoria 8 8 of 15 FILED: NEW YORK COUNTY CLERK 10/03/2017 02:27 PM INDEX NO. 160102/2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/03/2017 Gen. Contr. Corp., 144 A.D.3d 1093, 1096—97, 43 N.Y.S.3d 381 (2nd Dept. 2016) (Citation omitted; emphasis added; internal quotation marks omitted). 27. In this instant action, Plaintiff has failed to plead any facts which establish a cause of action for unjust enrichment. Plaintiff’s unjust enrichment claim is premised upon Defendants’ alleged failure to comply with the terms of their Agreement. However, a contract between the parties already exists thereby precluding the simultaneous maintenance of a cause of action for unjust enrichment and breach of contract, which is Plaintiff’s first cause of action. 28. In fact, Plaintiff’s claims are not separate from the alleged breach of contract between the parties. Thus, Plaintiff’s claim for unjust enrichment would be duplicative of any purported cause of action for breach of contract. As such, the Court should dismiss this quasi-contract claim, as there is already an agreement between the parties. 29. Accordingly, since Plaintiff’s claim for unjust enrichment fails to set forth allegations that are a separate and distinct from its alleged breach of contract claim, it should be dismissed. PLAINTIFF’S THIRD CAUSE OF ACTION FOR FORECLOSURE OF THE MECHANIC’S LIEN MUST BE DISMISSED 30. New York Lien Law §17 states: “No 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 9 9 of 15 FILED: NEW YORK COUNTY CLERK 10/03/2017 02:27 PM INDEX NO. 160102/2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/03/2017 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 within one year from the filing of the original notice of lien . . . No lien shall be continued by such extension for more than one year from the filing thereof.” New York Lien Law §17. 31. “[I]t is well settled that commencement of a foreclosure action alone, without filing a notice of pendency, is insufficient to continue a lien . . . . [A] lien is good for one year only. To keep it valid longer, a lienor must, within that year, (1) start an action to foreclose the lien and (2) file a notice of pendency. Alternatively, a lienor can file (or move for) a one-year extension of the lien and consequently extend the time in which to start the action and file a notice of pendency. In the event both things are not accomplished within the extension period, and a further extension of the lien is not obtained by order of the court, the lien expires.” Bianchi Const. Corp. v. D'Egidio, 165 Misc.2d 973, 976, 630 N.Y.S.2d 904, 1995 WL 495245 (Sup. Ct. 1995) (Citation omitted); see also Madison Lexington Venture v. Thomas Crimmins Contr. Co., 159 A.D.2d 256, 257, 552 N.Y.S.2d 251, 1990 WL 25363 (1st Dept. 1990). 32. “In other words, Lien Law § 17 provides that a lienor has one year from the filing of a mechanic's lien to commence an action and file a notice of pendency. However, the lienor may obtain a one-year extension of the time in which to accomplish the commencement of the action and the filing of a notice of pendency. Otherwise the lien expires.” Id. at 976-77; See also Aztec Window & Door Mfg., Inc. v. 71 Vil. Rd., LLC, 60 A.D.3d 795, 796, 875 N.Y.S.2d 528, 2009 WL 711769 (2nd Dept. 2009) (“In the event neither of these conditions is accomplished within the statutory period, nor is a further 10 10 of 15 FILED: NEW YORK COUNTY CLERK 10/03/2017 02:27 PM INDEX NO. 160102/2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/03/2017 extension of the lien obtained by order of the court, the lien automatically expires by operation of law, becoming a nullity and requiring its discharge.”). 33. In Bianchi Construction Corp., the plaintiff brought an action against homeowners to foreclose a mechanics lien. The Court determined that the mechanics lien expired one year after lienor obtained a valid extension of the lien, even though an action to foreclose the lien was commenced during the extension period, because no notice of pendency was filed within the extension period. 34. Furthermore, Courts have shown that it is unfavorable to amend an expired lien. In Aztec Window & Door Mfg., Inc., the defendant moved to discharge the then-expired mechanics lien, and the plaintiff cross-moved for leave to file an untimely notice of pendency. The Court determined that due to plaintiff’s failure to file a notice of pendency or move to extend the time to do so within the one-year period, the mechanic’s lien expired as a matter of law and should be discharged. Ultimately reversing the Supreme Court’s decision that granted Plaintiff’s motion for leave to file its untimely notice of pendency. 35. In the present case, Plaintiff seeks the foreclosure of the Lien against the Unit in the amount of $48,250.29. However, Plaintiff has not properly complied with the requirements for foreclosure of the mechanics lien pursuant to New York Lien Law §17. 36. Plaintiff filed the mechanics lien against the Unit, on or about September 21, 2015, claiming that it is entitled to payment in the amount of $48,250.29. A valid extension of the lien was filed on September 19, 2016. 37. Plaintiff commenced this action during the extension period, however, no 11 11 of 15 FILED: NEW YORK COUNTY CLERK 10/03/2017 02:27 PM INDEX NO. 160102/2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/03/2017 notice of pendency was filed in this matter and the Complaint makes no allegation that one was filed. A review of the court docket clearly shows that no Lis Pendens was ever filed in this action as required by New York Lien Law §17. As a result, the Extended Lien expired on September 19, 2017. Plaintiff has failed to comply with the rules set forth in Lien Law §17, which require the commencement of a foreclosure action along with filing a notice of pendency. 38. Moreover, Plaintiff had the option to move for an additional one-year extension of the lien to extend the time in which to start the action and file a notice of pendency, however, Plaintiff has not failed to do so on or before September 19, 2017. As such, Plaintiff should not be allowed additional time to file its untimely notice of pendency. 39. Even if Plaintiff were to file an extension, it must be done within reasonable time before the expiration date. 40. Accordingly, Plaintiff has failed to file a notice of pendency. Therefore, Defendant’s motion to dismiss should be granted pursuant to CPLR §3211(a)(7). PLAINTIFF’S FOURTH CAUSE OF ACTION FOR VIOLATION OF CONSTRUCTION TRUST FUNDS MUST BE DISMISSED 41. “Article 3-A of the Lien Law creates trust funds out of certain construction payments or funds to assure payment of subcontractors, suppliers, architects, engineers, laborers, as well as specified taxes and expenses of construction.” Aspro Mech. Contr., Inc. v. Fleet Bank, N.A., 1 N.Y.3d 324, 328, 773 N.Y.S.2d 735 (2004); New York Lien Law §§70, 71. 12 12 of 15 FILED: NEW YORK COUNTY CLERK 10/03/2017 02:27 PM INDEX NO. 160102/2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/03/2017 42. Pursuant to §70(1) of Lien Law, any funds received by a contractor from a homeowner under or in connection with a contract for the improvement of real property, or for home improvement, “shall constitute assets of a trust for the purposes provided in section seventy-one of this chapter.” Upon the creation of such trust, a contractor or subcontractor “becomes the trustee of such funds.” Lien Law §70(2); see also Rogers v. State of New York, 181 Misc. 2d 683, 694 N.Y.S.2d 874 (Ct. of Cl. 1999), affirmed 280 A.D.2d 930, 719 N.Y.S.2d 916 (4th Dept. 2001). 43. Pursuant to §71 of the Lien Law, trust assets of which a contractor is a trustee shall be held and applied for, inter alia, payment of claims of subcontractors, architects, engineers, surveyors, laborers and materialmen. See also Higgins-Kieffer v. State, 165 Misc 2d 425, 627 NYS2d 513 (Ct. of Cl. 1995) (“Under article 3-A of the Lien Law, which provides that all funds paid to a contractor in connection with the improvement of real property constitute assets of a trust for the benefit of subcontractors, laborers, materialmen. …”). 44. Section 79-a of the New York Lien Law states: “[a]ny trustee of a trust arising under this article, and any officer, director or agent of such trustee, who applies or consents to the application of trust funds received by the trustee as money or an instrument for the payment of money for any purpose other than the trust purposes of that trust, as defined in section seventy-one, is guilty of larceny and punishable as provided in the penal law . . . .” New York Lien Law §79-a. 45. In the instant action, Plaintiff misinterprets Lien Law §79-a as Defendants are not subject to that provision. More specifically, Defendants are not trustees of the 13 13 of 15 FILED: NEW YORK COUNTY CLERK 10/03/2017 02:27 PM INDEX NO. 160102/2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/03/2017 trust fund which was created for the project at Defendants’ residence. It in fact is the Plaintiff who is the trustee of the fund, pursuant to Lien Law §70(1) and Plaintiff must maintain the funds it receives in trust from the Defendants as part of the project for the purpose of paying Plaintiff’s subcontractors. Defendants did not receive any funds in connection with the Agreement for the purposes of the making payments, as a trustee, to subcontractors, architects, engineers, surveyors, laborers and materialmen. 46. Furthermore, Article 3-A is meant for the benefit of subcontractors, suppliers, architects, engineers, laborers, etc. to ensure that they are paid. In the present case, Defendants are not subcontractors, nor are they contractors who are deemed the trustee of the trust fund. Therefore, Section 79-a is inapplicable. 47. Accordingly, Plaintiff’s fourth cause of action as set forth in the Complaint must be dismissed. 14 14 of 15 FILED: NEW YORK COUNTY CLERK 10/03/2017 02:27 PM INDEX NO. 160102/2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 10/03/2017 WHEREFORE it is respectfully requested that this Court issue an Order which dismisses Plaintiff’s second, third and fourth cause of action in the Complaint pursuant to CPLR §§3211(a)(1) and (a)(7) along with such other and further relief as this Court deems just and proper. Dated: New York, New York October 3, 2017 _________________________________ PETER MOULINOS 15 15 of 15