| Associated Bldg. Servs., Inc. v Pentecostal FaithChurch |
| 2013 NY Slip Op 08329 [112 AD3d 1130] |
| December 12, 2013 |
| Appellate Division, Third Department |
| Associated Building Services, Inc., Respondent, vPentecostal Faith Church et al., Appellants, et al., Defendants. (And Another RelatedAction.) |
—[*1] Gurda Law Office, Middletown (Christopher E. Gurda of counsel), forrespondent.
Spain, J. Appeal from that part of an order of the Supreme Court (Schick, J.), enteredMay 1, 2013 in Sullivan County, which denied a cross motion by defendants PentecostalFaith Church and Bethel Sunshine Camp of the Catskill Mountains, Inc. to compel anitemized statement by plaintiff.
Defendant Pentecostal Faith Church is the owner of real property in the Town ofThompson, Sullivan County upon which defendant Bethel Sunshine Camp of the CatskillMountains, Inc. operates a business. In November 2011, Bethel Sunshine Campcontracted with plaintiff to erect two buildings upon the property. A great deal of buriedgarbage and debris was uncovered during construction and, in 2012, Bethel SunshineCamp allegedly entered into a second contract with plaintiff for the removal of the debrisand replacement with clean fill. Plaintiff then subcontracted with another entity,Deckelman, LLC, for various debris removal services.[*2]
When, according to plaintiff, Bethel SunshineCamp failed to make certain payments under both the construction and debris removalcontracts, plaintiff filed a mechanic's lien against the property for $364,799.68 in July2012. Deckelman sued plaintiff in October 2012, seeking to recover for its unpaid work.Plaintiff commenced a separate action shortly thereafter and, among other things,asserted breach of contract claims stemming from the two contracts and sought toforeclose upon its mechanic's lien.
Pentecostal Faith Church, as the property's owner, demanded that plaintiff producean itemized statement detailing the work and materials that formed the basis for itsmechanic's lien in October 2012 (see Lien Law § 38). Plaintiff provided acopy of its soon to be filed verified complaint in response, asserting that the complaintadequately "set forth the items of labor and/or material and the value thereof" that formedthe basis for the mechanic's lien (Lien Law § 38). No objection was initially madeto that response until Pentecostal Faith Church again demanded an itemized statement inJanuary 2013. Plaintiff served the same response, which Pentecostal Faith Churchrejected as inadequate.
The parties filed various motions including, as is relevant here, one by PentecostalFaith Church and Bethel Sunshine Camp (hereinafter collectively referred to asdefendants) to compel plaintiff to serve an itemized statement or for cancellation of themechanic's lien. Supreme Court issued a decision that, among other things, denieddefendants' motion without prejudice to renewal if plaintiff failed to produce therequisite information during discovery in the pending action. Defendants now appeal.
While we do not agree with plaintiff's assertion that defendants are barred "fromchallenging the sufficiency of the statement that it ha[d] already furnished," wenevertheless find that Supreme Court properly denied defendants' motion (Matter of BK Venture Corp., 7AD3d 793, 794 [2004]). Lien Law § 38 states that a lienor "shall, on demandin writing, deliver to the owner or contractor making such demand a statement in writingwhich shall set forth the items of labor and/or material and the value thereof which makeup the amount for which he [or she] claims a lien, and which shall also set forth the termsof the contract under which such items were furnished." While that language "appears toconfer an unrestricted right to an itemization of labor and materials, such is not the case"(F.J.C. Cavo Constr. v Robinson, 81 AD2d 1005, 1005 [1981]). Itemization isinstead required only when it is necessary "to apprise the owner of the details of thelienor's claim" (id.; see Matter of Solow v Bethlehem Steel Corp., 60AD2d 826, 826 [1978], appeal dismissed 46 NY2d 836 [1978]; cf. Matter ofBurdick Assoc. Owners Corp. [Karlan Constr. Corp.], 131 AD2d 672, 672 [1987]).
Turning to the case at hand, plaintiff asserts that it performed the 2011 constructioncontract in full, and its claim with regard to that contract "is based on an express contractfor a specific sum" (F.J.C. Cavo Constr. v Robinson, 81 AD2d at 1005; seeMatter of 819 Sixth Ave. Corp. v T. & A. Assoc., 24 AD2d 446, 446 [1965]).Defendants do not dispute that they were fully aware of the terms of that contract and,indeed, they attached a copy of the written contract to their answer. With regard to the2012 debris removal agreement, the complaint sets forth agreed-upon rates for the workand asserts that Bethel Sunshine Camp was routinely provided with invoices detailing thework that plaintiff had completed. While defendants in their answer denied havingreceived such invoices, they notably failed to make that assertion in their motion tocompel plaintiff to produce a more detailed itemized statement. In our view, plaintiff hassufficiently detailed the basis for its mechanic's lien, and any further itemization wouldbe "superfluous" within the context of these pending actions (Strongback Corp. v N.E.D.Cambridge [*3]Ave. Dev. Corp., 25 AD3d 392,393 [2006]; cf. Matter of DePalo v McNamara, 139 AD2d 646, 646-647 [1988]).Plaintiff "bears the burden of establishing its entitlement to payment" in these actionsand, thus, defendants' contentions that plaintiff breached the 2011 agreement andexaggerated the amount of its mechanic's lien may be fully explored through the regulardiscovery process (Strongback Corp. v N.E.D. Cambridge Ave. Dev. Corp., 25AD3d at 393).
Rose, J.P., Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.