| Saratoga Assoc. Landscape Architects, Architects, Engrs. & Planners,P.C. v Lauter Dev. Group |
| 2010 NY Slip Op 07638 [77 AD3d 1219] |
| October 28, 2010 |
| Appellate Division, Third Department |
| Saratoga Associates Landscape Architects, Architects, Engineersand Planners, P.C., Appellant-Respondent, v The Lauter Development Group et al., Respondentsand Abode Blue Chip, LLC, Respondent-Appellant. |
—[*1] Roemer, Wallens, Gold & Mineaux, L.L.P., Albany (Earl T. Redding of counsel), for TheLauter Development Group and others, respondents. Whiteman, Osterman & Hanna, Albany (Neil L. Levine of counsel), forrespondent-appellant.
Garry, J. Cross appeals (1) from an order of the Supreme Court (Teresi, J.), entered July 29,2009 in Albany County, which partially granted a motion by defendant Abode Blue Chip, LLCfor, among other things, summary judgment dismissing the complaint against it, and (2) from anorder of said court, entered October 30, 2009 in Albany County, which, among other things,granted plaintiff's motion for summary judgment dismissing the counterclaim of defendantAbode Blue Chip, LLC.
Defendant Abode Blue Chip, LLC owns property in the Town of Guilderland, AlbanyCounty. In 2008, defendant Sanford Zimmerman, a principal of defendant The LauterDevelopment Group, discussed purchasing the property with Peter Cornell, an agent of Abodeand the president of BBL Development Group, LLC, an affiliated entity of Abode. Lauter'sinterest in purchasing the property was conditioned on amending the existing site plan, so Lauterand/or Zimmerman retained plaintiff to prepare an amended plan. Thereafter, the anticipated realproperty purchase did not occur, and plaintiff allegedly was not paid in full for its services.
Plaintiff filed a notice of lien upon the property, which Abode contested, and plaintiffcommenced this action seeking lien foreclosure and damages for, among other things, breach ofcontract. Following joinder of issue, Abode moved for summary judgment dismissing theforeclosure cause of action and awarding damages on its counterclaim for willful exaggeration.Supreme Court determined that Abode did not consent to plaintiff's work, discharged the lien,and denied summary judgment on Abode's claim for damages. Thereafter, Zimmerman soughtsummary judgment dismissing the complaint against him individually, and plaintiff cross-movedfor summary judgment dismissing Abode's willful exaggeration counterclaim and seeking leaveto amend the complaint to, among other things, add a claim that Zimmerman personallypromised to pay plaintiff for the services rendered to Lauter. Supreme Court deniedZimmerman's motion, granted plaintiff's motion for summary judgment dismissing Abode'scounterclaim and, as relevant here, denied plaintiff's motion for leave to amend the complaint.Plaintiff and Abode cross-appeal from both orders, and we affirm.
A mechanic's lien on real property is valid only when the lienor's services were performedwith the consent or upon request of the owner or owner's agent (see Lien Law § 3;Care Sys. v Laramee, 155 AD2d 770, 771 [1989]). While express consent need not beshown, an affirmative act is required to demonstrate implied consent, and the owner's "[m]ereacquiescence" in the lienor's activities will not suffice (Tri-North Bldrs. v Di Donna, 217AD2d 886, 887 [1995]; see Beaudet v Saleh, 149 AD2d 772, 773-774 [1989], lvdenied 74 NY2d 610 [1989]). Abode supported its summary judgment motion with, amongother things, affidavits from Cornell and Zimmerman averring that neither Cornell nor Abodeconsented to plaintiff's work, intended to use it, or communicated directly with plaintiff about it.They further averred that they had an arm's length relationship and did not have a partnership orother association by which Abode might have been bound by Zimmerman's consent to plaintiff'swork. This evidence was sufficient to meet Abode's initial burden and shift the burden to plaintiffto demonstrate the existence of triable issues of fact (see Zuckerman v City of New York,49 NY2d 557, 562[*2][1980]).[FN*]
Plaintiff's submission of the affidavit of its president, Robert Bristol, was insufficient to meetthat burden. Bristol describes conversations and transactions among plaintiff, Zimmerman,Abode, and others, attempting to raise factual questions as to whether Zimmerman acted asAbode's agent or had entered into a joint venture with it. However, Bristol does not claim that heparticipated in these events or otherwise had personal knowledge of them, and the attacheddocuments indicate that other representatives of plaintiff were involved. Plaintiff proffers noexcuse for failure to present this hearsay evidence in admissible form (see Meizinger vAkin, 192 AD2d 1011, 1014 [1993], lv denied 82 NY2d 661 [1993]). Thus, Bristol'saffidavit was without evidentiary value and insufficient to defeat plaintiff's prima facie showing(see Jock v Landmark HealthcareFacilities, LLC, 62 AD3d 1070, 1072 [2009]). Moreover, even if Bristol's affidavit wereadmissible, it contains no allegations of words or conduct attributable to Abode that could haveled plaintiff to the reasonable conclusion that an agency relationship existed (see PyramidChamplain Co. v Brosseau & Co., 267 AD2d 539, 544 [1999], lv denied 94 NY2d760 [2000]), nor was there evidence that Zimmerman and Abode intended to share profits, makegood on losses, or otherwise engage in a joint venture (see Baldwin v Bradt, 62 AD3d 1131, 1132 [2009]; Kaufman v Torkan, 51 AD3d 977,979 [2008]). Finally, we agree with Supreme Court that consent to plaintiff's work cannot beinferred from Abode's sole act of direct contact with plaintiff—that is, its compliance withZimmerman's request to supply plaintiff with the approved site plan. This single act establishesnothing more than Abode's knowledge of and acquiescence in plaintiff's work, and is insufficientto establish consent (see Tri-North Bldrs. v Di Donna, 217 AD2d at 887; Beaudet vSaleh, 149 AD2d at 773-774). Thus, summary dismissal of the foreclosure claim was proper.
Further, Supreme Court did not abuse its discretion in denying plaintiff's request for a stay ofthe motion pending further discovery (see CPLR 3212 [f]). In the absence of "someevidentiary showing suggesting that completion of discovery will yield material and relevantevidence" (Zinter Handling, Inc. vBritton, 46 AD3d 998, 1001 [2007]; accord Overseas Private Inv. Corp. v Nam Koo Kim, 69 AD3d1185, 1188 [2010], lv dismissed 14 NY3d 935 [2010]), plaintiff's conjecture thatfurther discovery might support its claim of a joint venture or agency relationship betweenZimmerman and Abode was nothing more than the "mere hope that [*3]evidence sufficient to defeat the motion may be uncovered" (Stoian v Reed, 66 AD3d 1278,1280 [2009] [internal quotation marks omitted]).
Plaintiff next contends that it should have been permitted to serve an amended complaintadding a cause of action against Zimmerman personally, alleging that he made an oral promise topay plaintiff for its services. However, the proposed amendment was barred by the statute offrauds (see General Obligations Law § 5-701 [a] [2]). Plaintiff did not allege thatZimmerman's promise was supported by new and beneficial consideration or that the partiesintended that Zimmerman was to become primarily liable on the debt (see PyramidChamplain Co. v Brosseau & Co., 267 AD2d at 543; see also Martin Roofing vGoldstein, 60 NY2d 262, 268-269 [1983], cert denied 466 US 905 [1984]).Moreover, the allegation that Zimmerman paid part of the amount due does not save plaintiff'sclaim, as the partial performance exception to the statute of frauds does not apply to contractsgoverned by General Obligations Law § 5-701 (see Messner Vetere Berger McNameeSchmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 234 n 1 [1999]; StainlessBroadcasting Co. v Clear Channel Broadcasting Licenses, L.P., 58 AD3d 1010, 1012-1013[2009]). While leave to amend pleadings is ordinarily freely granted, the proposed amendmentwas without merit, and denial of leave to amend was thus within Supreme Court's discretion(see CPLR 3025 [b]; Peebles vPeebles, 40 AD3d 1388, 1390 [2007], lvs dismissed 9 NY3d 892 [2007], 10NY3d 893 [2008]).
Finally, Abode contends that Supreme Court erred in denying its motion for summaryjudgment on its counterclaim for damages for willful exaggeration pursuant to Lien Law §39-a, and further, in dismissing the counterclaim. We disagree. Lien Law §§ 39 and39-a must be read together, and no damages may be awarded unless the lien has been dischargedfor willful exaggeration (see Pyramid Champlain Co. v Brosseau & Co., 267 AD2d at542). This lien was not discharged for willful exaggeration, but for lack of consent; thus,damages were unavailable (see id. at 542-543; Stamatopoulos v Karasik, 238AD2d 688, 691 [1997], lv dismissed and denied 92 NY2d 844 [1998]). Further, dismissalof the counterclaim was appropriate. Abode's argument that the entire amount of the lien waswillfully exaggerated, as plaintiff knew or should have known that the lien was invalid due to thelack of consent, is inconsistent with our prior interpretations of these statutes. The remedy inLien Law § 39-a requires a finding that the lienor "deliberately and intentionallyexaggerated the lien amount" (Barden & Robeson Corp. v Czyz, 245 AD2d 599,601 [1997] [emphasis added]; see Washington 1993 v Reles, 255 AD2d 745, 747[1998]), and is available only where the lien is otherwise valid (see Guzman v Estate ofFluker, 226 AD2d 676, 678 [1996]). As a penal provision, this statute "must be strictlyconstrued in favor of the person upon whom the penalty is sought to be imposed" (PyramidChamplain Co. v Brosseau & Co., 267 AD2d at 543).
Spain, J.P., Lahtinen and Kavanagh, JJ., concur. Ordered that the orders are affirmed,without costs. [Prior Case History: 2009 NY Slip Op 31657(U).]
Footnote *: For the first time on appeal,plaintiff contends that the affidavits of Zimmerman and Cornell were without evidentiary valuein that they relied on hearsay documents and contained no express recital that they were based onpersonal knowledge. Even had this argument been preserved for appellate review (see Deshields v Carey, 69 AD3d1191, 1193 [2010]), Zimmerman and Cornell were the principal actors in the transactions atissue, and their affidavits describe their own actions and participation in events; their personalknowledge was thus self-evident.