| Cranesville Block Co., Inc. v Spring Apts., LLC |
| 2008 NY Slip Op 06482 [53 AD3d 998] |
| July 31, 2008 |
| Appellate Division, Third Department |
| Cranesville Block Company, Inc., Appellant, v SpringApartments, LLC, et al., Respondents, et al., Defendant. |
—[*1] Corbally, Gartland & Rappleyea, Poughkeepsie (Jon Holden Adams of counsel), forrespondents.
Stein, J. Appeal from an order of the Supreme Court (Sise, J.), entered February 26, 2007 inMontgomery County, which, among other things, granted the motion of defendants Spring Apartments,LLC and International Fidelity Insurance Company for summary judgment dismissing the complaintagainst them.
Plaintiff entered into a credit agreement to provide ready-mix concrete to defendant AdvancedWall Systems, LLC, a subcontractor hired to complete concrete work on the Spring ManorApartments in the Town of Poughkeepsie, Dutchess County. Defendant Spring Apartments, LLC is theowner of the apartments and defendant International Fidelity Insurance Company is Spring's insurer.Following nonpayment of over $10,000, plaintiff filed a mechanic's lien against the property onFebruary 2, 2004. Thereafter, Spring, as principal, and International, as surety, filed a bond in theamount of $10,345.25 to discharge the lien. Plaintiff then filed a summons and complaint seeking toforeclose its lien and to recover damages from Advanced.
All defendants moved to dismiss the complaint and/or for summary judgment and plaintiffcross-moved for summary judgment against Advanced. While the summary judgment [*2]motions were pending, plaintiff also moved for an order pursuant toCPLR 304 to deem the action timely commenced or, in the alternative, for an evidentiary hearing on theissue. After a hearing was held, Supreme Court found that plaintiff did not overcome the presumptionthat the summons and complaint were filed on February 3, 2005—the date on which they werestamped received by the County Clerk's office—and, thus, found that the action to foreclose themechanic's lien was not timely commenced and granted defendants' motions for summary judgment.Plaintiff now appeals.
Initially, plaintiff asserts that Supreme Court erred in determining that the summons and complaintwere not timely filed as a matter of law. We disagree. "An action is commenced by filing a summonsand complaint . . . [F]iling shall mean the delivery of the . . . summons andcomplaint . . . to the clerk of the court in the county in which the action . . .is brought or any other person designated by the clerk of the court for that purpose" (CPLR former304).[FN*]The filed papers "shall be date stamped by the clerk of the court who shall file them and maintain arecord of the date of the filing" (CPLR former 304).
The relevant date for commencement purposes is the date that the papers to be filed are receivedby the county clerk, not the date that the papers are mailed (see Matter of Abramov v Board ofAssessors, Town of Hurley, 257 AD2d 958, 960 [1999], lv denied 93 NY2d 813[1999]; Enos v City of Rochester, 206 AD2d 159, 161 [1994]). A "presumption exists thatthe actual filing date is the date the summons and verified complaint are stamped filed by the CountyClerk. However, extraordinary circumstances may exist establishing that the actual filing of thesedocuments occurred on an earlier date than that reflected on the stamp and, if clear and unequivocalevidence exists establishing that fact, it will serve to rebut the presumption" (Resch v Briggs, 51 AD3d 1194, 1196[2008] [citation omitted]).
Here, in order to be timely, plaintiff was required to commence an action to foreclose its lien on orbefore February 1, 2005 (see Lien Law § 19 [2]; 76A NY Jur 2d, Mechanics' Liens§ 130). Supreme Court properly determined that plaintiff failed to provide clear and unequivocalevidence to rebut the presumption that the summons and complaint were received by the County Clerkon February 3, 2005—the date they were date stamped. Plaintiff's office employee testified thatshe mailed them to the Montgomery County Clerk from the post office in the Town of Amsterdam,Montgomery County between 4:30 p.m. and 5:00 p.m. on January 31, 2005. It is undisputed that thesummons and complaint were date/time stamped by the Montgomery County Clerk on February 3,2005 at 11:54 a.m. The County Clerk testified that all mail for the County is received in one post officebox at the post office on Main Street in the Village of Fonda, Montgomery County, is collected by amail delivery person and distributed by that person to the various county offices, including the CountyClerk's office on Broadway in the Village of Fonda, Montgomery County. The mail is usually receivedin the County Clerk's office between 10:30 a.m. and 1:00 p.m. The County Clerk or her deputy opensthe mail and places anything needing an index number on the desk of the index record clerk. The indexrecord clerk, who is responsible for stamping and entering summonses and complaints, testified that sheusually sees the mail when she returns from her lunch break at approximately 12:30 p.m., that she filesuntil [*3]3:30 p.m. and that anything not finished by that time is done thenext day. However, the testimony showed that the filing of summonses and complaints was a priorityand was generally accomplished the day they were received.
Preliminarily, we reject plaintiff's contention that receipt in the general county post office box wassufficient. Even if that were the case, there is no clear evidence to support plaintiff's assertion that it onlytakes one day for mail received in the late afternoon at the post office in the Town of Amsterdam,Montgomery County, to travel to the post office in the Village of Fonda, Montgomery County. Plaintiffalso failed to provide any evidence that the county mail delivery person actually picked up the mail fromthe post office box and delivered it to the County Clerk on February 1, 2005. Further, even if, asplaintiff argues, the time of the date stamp suggests that it was received the previous day, plaintiff'saction is still not timely. Thus, Supreme Court properly granted the motion of Spring and Internationalfor summary judgment dismissing the complaint against them.
However, Supreme Court erred in granting Advanced's motion for summary judgment and indenying plaintiff's cross motion for summary judgment against Advanced for a personal judgment in theamount of $10,345.25. Pursuant to Lien Law § 54, even if a lien is invalid, a lienor may recoverin an action on a contract against any party to the action. The statute of limitations for such an action issix years (see CPLR 213). Here, plaintiff's complaint specifically demanded personal judgmentagainst Advanced in the event that the lien was invalid and set forth the elements of a cause of actionagainst Advanced for breach of contract (see CPLR 3026). Furthermore, plaintiff established aprima facie entitlement to summary judgment by presenting the affidavit of its credit manager, a copy ofthe contract and the invoices plaintiff sent to Advanced. In response, Advanced failed to dispute thematerial terms of the contract and submitted only the affirmation of an attorney, who lacked therequisite personal knowledge to create a triable issue of fact (see Alvarez v Prospect Hosp.,68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 563 [1980]).Therefore, plaintiff is entitled to summary judgment on its contract cause of action against Advanced(see Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49NY2d at 562; ADC Chattels v Atlantic Dental Co., 169 AD2d 903, 903-904 [1991]).
Cardona, P.J., Peters, Spain and Carpinello, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as granted the motion of defendant Advanced WallSystems, LLC for summary judgment and as denied plaintiff's cross motion for summary judgmentagainst said defendant; said defendant's motion denied, plaintiff's cross motion granted and plaintiff isawarded judgment against said defendant in the amount of $10,345.25; and, as so modified, affirmed.
Footnote *: While the relevant language in thestatute has not changed, at the time of the filing of the pleadings here, a former section of the statuteapplied which was only effective until December 31, 2007.