| J.K. Tobin Constr. Co., Inc. v David J. Hardy Constr. Co.,Inc. |
| 2009 NY Slip Op 05806 [64 AD3d 1206] |
| July 10, 2009 |
| Appellate Division, Fourth Department |
| J.K. Tobin Construction Co., Inc., Respondent, v David J. HardyConstruction Co., Inc., Defendant and Third-Party Plaintiff, and Pat J. Bombard, Appellant.Bombard Car Co., Inc., Third-Party Defendant-Appellant. (Appeal No.2.) |
—[*1] Hiscock & Barclay, LLP, Syracuse (Richard K. Hughes of counsel), forplaintiff-respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (Deborah H. Karalunas,J.), entered February 15, 2008 in an action to foreclose on a mechanic's lien. The judgment, uponplaintiff's motion for partial summary judgment on the first cause of action to enforce themechanic's lien and the cross motion of defendant Pat J. Bombard and third-party defendant todischarge that lien, granted judgment in favor of plaintiff against certain real property owned bydefendant Pat J. Bombard.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff commenced this action seeking, inter alia, to foreclose on amechanic's lien arising out of a construction project on property owned by defendant Pat J.Bombard (Bombard). Plaintiff had entered into a subcontract with defendant-third-party plaintiff,David J. Hardy Construction Co., Inc. (Hardy), the general contractor on the constructionproject, to perform "earthwork" that included the installation of a storm drainage system.Third-party defendant, Bombard Car Co., Inc. (Bombard Car), leases the property from Bombardand operates a retail automobile business there. In its first cause of action, plaintiff sought toenforce the mechanic's lien against Bombard and Hardy and, in its remaining two [*2]causes of action, plaintiff alleged breach of contract and an accountstated against Hardy, on the ground that plaintiff allegedly was not paid in full pursuant to theterms of the subcontract. Plaintiff thereafter made a motion (first motion) for partial summaryjudgment on the second and third causes of action, against Hardy. Plaintiff also made a separatemotion (second motion) for partial summary judgment seeking to enforce the mechanic's lienagainst Hardy and Bombard, and Bombard and Bombard Car cross-moved to discharge themechanic's lien. In addition, Hardy cross-moved for leave to amend its answer to assertcounterclaims for breach of contract and negligence against plaintiff. By the order in appeal No.1, Supreme Court denied plaintiff's first motion, granted plaintiff's second motion, denied thecross motion of Bombard and Bombard Car, and granted that part of Hardy's cross motion onlywith respect to the counterclaim for breach of the subcontract. By the judgment in appeal No. 2,the court granted plaintiff judgment on the mechanic's lien. We note at the outset that those partsof the order in appeal No. 1 granting plaintiff's second motion and denying the cross motion ofBombard and Bombard Car are subsumed in the judgment of foreclosure on the mechanic's lienin appeal No. 2. Thus, the appeal by Bombard and Bombard Car in appeal No. 1 is dismissed(see Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988 [1988]; see alsoCPLR 5501 [a] [1]).
Addressing first plaintiff's second motion, we conclude that the court properly granted thatmotion inasmuch as plaintiff established its entitlement to judgment as a matter of law, andBombard and Hardy failed to raise a triable issue of fact (see generally Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]). Bombard's contention that plaintiff was negligent inits performance is supported only by an unsworn item of correspondence sent to Bombard by anengineer, which is insufficient to raise a triable issue of fact (see Lehigh Constr. Group vAlmquist, 262 AD2d 943, 944 [1999], lv dismissed 94 NY2d 838, 99 NY2d 501[1999]).
Bombard also contends that the mechanic's lien cannot be foreclosed against him because heentered into the construction contract with Hardy in his capacity as president of Bombard Car,not in his individual capacity. We reject that contention. "An owner of real property may besubjected to a mechanic's lien for improvements when the work is done 'with the consent' of theowner . . . The consent required by [Lien Law § 3] is not mere acquiescenceand benefit, but some affirmative act or course of conduct establishing confirmation. . . Such consent may be inferred from the terms of the lease and the conduct of theowner" (Harner v Schecter, 105 AD2d 932, 932 [1984]).
Here, Bombard is the property owner as well as the president of the company leasing thesubject property. Indeed, it is undisputed that Bombard, without distinguishing between hisindividual and corporate capacities, negotiated the terms of the contract with Hardy, had frequentconversations and interactions at the work site with Hardy's director of construction during thecourse of the project, and was directly involved in the field meetings at the work site. Thus, weconclude that Bombard consented to the improvements (see Lien Law § 3;Harner, 105 AD2d 932 [1984]).
We further conclude that the court erred in denying plaintiff's first motion, for partialsummary judgment on the second and third causes of action in the amended complaint. Plaintiffestablished its entitlement to judgment as a matter of law on the second cause of action, forbreach of contract against Hardy, by establishing that it had a subcontract with Hardy and thatHardy owed plaintiff money on that subcontract (see e.g. Colucci v AFC Constr., 54 AD3d 798 [2008]; Castle Oil Corp. v Bokhari, 52 AD3d762 [2008]). Plaintiff also established its entitlement to judgment as a matter of law on thethird cause of action, for an account stated against Hardy, by submitting the purchase orders thatwere submitted to and received by Hardy without objection (see Castle Oil Corp., 52AD3d 762 [2008]). The conclusory statement of Hardy in opposition to the first motion, i.e., thatsummary judgment would be premature because it was not known whether plaintiff had [*3]breached the subcontract and, if it did, the extent of the damagecaused, is insufficient to raise an issue of fact to defeat the motion. Hardy failed to establish thatfacts essential to oppose the motion were in plaintiff's possession, and a "mere hope" thatdiscovery will disclose evidence to establish that plaintiff, rather than Hardy, breached thesubcontract is insufficient to defeat plaintiff's first motion (Ramesar v State of NewYork, 224 AD2d 757, 759 [1996], lv denied 88 NY2d 811 [1996]; see Wright v Shapiro, 16 AD3d1042, 1043 [2005]). We therefore modify the order in appeal No. 1 accordingly, and wedirect that judgment be entered in favor of plaintiff and against Hardy in the amount of$121,918.21, together with interest at the rate of 9% per annum commencing September 30,2006, and costs and disbursements.
Finally, we note that plaintiff contends that the court erred in granting that part of the crossmotion of Hardy for leave to amend its answer to assert a counterclaim against plaintiff forbreach of contract. It is of course well settled that leave to amend a pleading should be freelygranted and is properly denied only where the proposed amendment plainly lacks merit (seeCPLR 3025 [b]; Manufacturers &Traders Trust Co. v Reliance Ins. Co., 8 AD3d 1000 [2004]; A.R. Mack Constr. Co. v PatriciaElec., 5 AD3d 1025, 1026 [2004]). Here, the counterclaim in question does not plainlylack merit on its face, but the court had before it a motion by plaintiff for partial summaryjudgment on its cause of action for breach of contract against Hardy. Our conclusion that Hardywas entitled to leave to amend its answer, which requires a standard of review different from thatapplicable to a motion for partial summary judgment, thus is of no moment. In determining thatplaintiff is entitled to partial summary judgment on its cause of action for breach of contractagainst Hardy, we have concomitantly determined that the counterclaim in question is withoutmerit as a matter of law. We therefore further modify the order in appeal No. 1 accordingly.Present—Smith, J.P., Fahey, Peradotto, Carni and Gorski, JJ.