| Kappa Dev. Corp. v Queens Coll. Point Holdings, LLC |
| 2012 NY Slip Op 03986 [95 AD3d 1178] |
| May 23, 2012 |
| Appellate Division, Second Department |
| Kappa Development Corp., Appellant, v Queens CollegePoint Holdings, LLC, Respondent, et al., Defendants. |
—[*1] Alexander Ferrini, III, Attorney At Law, P.C., New York, N.Y., for respondent.
In an action to foreclose mechanic's liens, the plaintiff appeals from an order of the SupremeCourt, Queens County (Hart, J.), entered October 1, 2010, which granted that branch of themotion of the defendant Queens College Point Holdings, LLC, which was pursuant to CPLR3211 (a) (1) to dismiss the complaint insofar as asserted against it.
Ordered that the order is reversed, on the law, with costs, and that branch of the motion ofthe defendant Queens College Point Holdings, LLC, which was pursuant to CPLR 3211 (a) (1) todismiss the complaint insofar as asserted against it is denied.
The plaintiff, a construction contractor, entered into a construction contract with thedefendant Queens College Point Holdings, LLC (hereinafter College Point). On October 2, 2007,the plaintiff executed a document entitled Affidavit of Waiver of Lien and Claims (hereinafterthe waiver), which provided, in pertinent part, that the plaintiff "does hereby forever waive andrelinquish (1) all claims and rights in lien which the Contractor may now have upon the Buildingand the Premises described above, and (2) all claims and rights of lien for any and all damagesand expenses which have been incurred prior to this request." Thereafter, the relationshipbetween the plaintiff and College Point apparently terminated, and the plaintiff thereafter filedvarious notices of mechanic's lien with respect to the subject property and College Point, recitingthat "the time when the last item of work was performed was 10/24/2007," and that "the timewhen the last item of material was furnished was 10/24/2007." The plaintiff subsequentlycommenced this action against College Point, among others, to foreclose its mechanic's liens.College Point moved to dismiss the complaint insofar as asserted against it based upon, inter alia,CPLR 3211 (a) (1), arguing that the waiver barred the plaintiff's action. The Supreme Courtgranted that branch of the motion on that basis. The plaintiff appeals, and we reverse.
In support of its motion, College Point submitted the waiver, the underlying constructioncontract between the parties, and an affidavit of its managing partner. A motion to dismiss acomplaint pursuant to CPLR 3211 (a) (1) will be granted only if the documentary evidence [*2]submitted by the defendant utterly refutes the factual allegations ofthe complaint and conclusively establishes a defense to the claims as a matter of law (see Bodden v Kean, 86 AD3d 524,526 [2011]; Orangetown HomeImprovements, LLC v Kiernan, 84 AD3d 902, 903 [2011]). An affidavit does notconstitute documentary evidence for purposes of CPLR 3211 (a) (1) (see HSBC Bank, USA v Pugkhem, 88AD3d 649, 651 [2011]; Fontanettav John Doe 1, 73 AD3d 78, 85 [2010]). Moreover, the documentary evidence submittedby College Point did not satisfy the standard described above, since the waiver is ambiguous asto whether it encompassed all of the items that are the subject of the liens, and the constructioncontract is silent on the question of the extent of the waiver. Thus, that branch of its motionshould have been denied (see GlobalPrecast, Inc. v Stonewall Contr. Corp., 78 AD3d 432 [2010]; Spectrum Painting Contrs., Inc. v KreislerBorg Florman Gen. Constr. Co., Inc., 64 AD3d 565, 578 [2009]).
College Point's contention concerning that branch of its motion which sought to dismiss thecomplaint on the ground that the plaintiff failed to comply with a condition precedent is notproperly before this Court. That branch of the motion was not addressed by the Supreme Courtand, thus, remains pending and undecided (see Young Chool Yoo v Rui Dong Wang, 88 AD3d 991, 992[2011]; Katz v Katz, 68 AD2d 536, 542-543 [1979]). Rivera, J.P., Dickerson, Leventhaland Cohen, JJ., concur.