| Creech v Rufa |
| 2012 NY Slip Op 08398 [101 AD3d 1224] |
| December 6, 2012 |
| Appellate Division, Third Department |
| Samuel Creech, Respondent, v Loreto Rufa et al.,Defendants, and Shawn Hamlin, Doing Business as Hamlin Design Group, et al.,Appellants. |
—[*1] James F. Keefe, Cairo, for respondent.
Garry, J. Appeals (1) from an order of the Supreme Court (McDonough, J.), entered October5, 2011 in Greene County, which, among other things, granted plaintiff's cross motion forsummary judgment vacating the mechanic's liens filed by defendants Shawn Hamlin andBuckman & Whitbeck, P.C., and (2) from an order of said court, entered March 14, 2012 inGreene County, which denied a motion by said defendants to renew and reargue.
Plaintiff entered into a contract to sell his real property in the Town of Windham, GreeneCounty to defendants Loreto Rufa and Larry Clohessy (hereinafter collectively referred to as thebuyers). The contract provided that the buyers would obtain the approval of certain governmentagencies for a 19-lot subdivision on the property and that the contract was contingent upon theseapprovals. The buyers contracted for this purpose with defendants Shawn Hamlin, doing businessas Hamlin Design Group, and Buckman & Whitbeck, P.C. (hereinafter collectively referred to asdefendants) to perform certain architectural and engineering services. [*2]The buyers ultimately failed to obtain the requisite approvals, andfailed to pay defendants in full for their services. Defendants filed mechanic's liens againstplaintiff's property for the amounts they claimed to be owed. Plaintiff then commenced thisbreach of contract action against the buyers and against defendants, seeking to have themechanic's liens declared invalid and discharged, among other things. Following discovery,defendants sought summary judgment declaring as a matter of law that plaintiff had consented totheir work, and other relief. Plaintiff opposed the motion and cross-moved for summaryjudgment vacating the mechanic's liens. Supreme Court denied defendants' motion and grantedplaintiff's cross motion. Defendants appeal from that order, and from a subsequent order denyingtheir motion for reargument and/or renewal.
A mechanic's lien on real property is not valid unless the property owner or the owner's agentrequested or consented to the lienor's services, and such consent must be shown by someaffirmative act, and not merely by the owner's acquiescence or awareness (see Lien Law§ 3; Saratoga Assoc. LandscapeArchitects, Architects, Engrs. & Planners, P.C. v Lauter Dev. Group, 77 AD3d 1219,1220-1221 [2010]; Tri-North Bldrs. v Di Donna, 217 AD2d 886, 887 [1995]; CareSys. v Laramee, 155 AD2d 770, 771 [1989]). Plaintiff supported his claim that he did notconsent to defendants' work with his affidavit and deposition testimony asserting that he had noprior knowledge of the nature of their obligations to the buyers or the services they performed,that he did not hire them or agree to their work and that, although he attended some meetings ofthe Town Planning Board at Rufa's request, he was not asked to review, comment on or inspectdefendants' work at these meetings or otherwise, never saw plans for the buyers' proposeddevelopment, and never spoke with the buyers about their plans for obtaining the requiredapprovals. Plaintiff further submitted the deposition testimony of defendants, who stated thatthey never spoke with plaintiff about their work, requested his input or approval, showed himplans, informed him of the work's progress or sought payment from him. We agree with SupremeCourt that these submissions met plaintiff's burden to establish on a prima facie basis that he wasentitled to judgment, shifting the burden to defendants to establish the existence of triable issuesof fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Saratoga Assoc.Landscape Architects, Architects, Engrs. & Planners, P.C. v Lauter Dev. Group, 77 AD3d at1221; Tri-North Bldrs. v Di Donna, 217 AD2d at 887).
Defendants did not meet that burden. Contrary to their claims, nothing more than plaintiff'sawareness and acquiescence was established by his signature on the purchase contract, hisdeposition testimony that he knew that the contract was contingent on the government approvals,and his attendance at meetings of the Planning Board where the subdivision project wasdiscussed. Defendants' claims to the effect that plaintiff knew of and consented to theirprofessional services were wholly conclusory and unsupported by any documents or otherevidence (see New York State Higher Educ. Servs. Corp. v Feher, 291 AD2d 736,737-738 [2002], lv dismissed and denied 98 NY2d 718 [2002]; Huff v C.K. SanitarySys., 260 AD2d 892, 896 [1999]). Accordingly, defendants failed to establish the existenceof issues of fact as to whether plaintiff took any affirmative act indicating his consent todefendants' work, and Supreme Court properly granted plaintiff's cross motion for summaryjudgment vacating the liens (see Saratoga Assoc. Landscape Architects, Architects, Engrs. &Planners, P.C. v Lauter Dev. Group, 77 AD3d at 1221-1222; Tri-North Bldrs. v DiDonna, 217 AD2d at 887).[*3]
Finally, Supreme Court properly denied defendants'motion for renewal.[FN*]Upon this motion, defendants submitted a certified copy of an application for review of a majorsubdivision that had been presented to the Planning Board in July 2006. This document did notconstitute newly discovered evidence—defendants had produced it during plaintiff's March2011 deposition and questioned him about it extensively. Nor was any justifiable excuse revealedfor the failure to obtain a certified copy of this document until after the summary judgment orderwas rendered (see CPLR 2221 [e]; 2 N. St. Corp. v Getty Saugerties Corp., 68 AD3d 1392, 1396[2009], lv denied 14 NY3d 706 [2010]; Johnson v Title N., Inc., 31 AD3d 1071, 1072 [2006]; GreaterAmsterdam School Dist. v International Fid. Ins. Co.,, 285 AD2d 944, 945 [2001]).
Mercure, J.P., Lahtinen, Kavanagh and McCarthy, JJ., concur. Ordered that the orders areaffirmed, with costs.
Footnote *: No appeal lies from the denialof a motion for reargument (see Hooverv State of New York, 80 AD3d 1020, 1020 [2011]).