| Sim v Farley Equip. Co. LLC |
| 2016 NY Slip Op 02704 [138 AD3d 1228] |
| April 7, 2016 |
| Appellate Division, Third Department |
[*1]
| Edward R. Sim, Doing Business as PyramidEquipment, et al., Respondents, v Farley Equipment Company LLC et al.,Appellants. |
Fischer, Bessette, Muldowney & Hunter, LLP, Malone (John J. Muldowney ofcounsel), for appellants.
Antonucci Law Firm, Watertown (David P. Antonucci of counsel), forrespondents.
Lynch, J. Appeal from an order of the Supreme Court (Main Jr., J.), entered March26, 2015 in St. Lawrence County, which, among other things, partially denieddefendants' motion to dismiss the complaint.
Plaintiffs commenced this action alleging that they entered into oral agreementspermitting defendants to use two of their excavators in various construction projects, butthat defendants failed to pay for the use of the excavators and also damaged theexcavators. They asserted causes of action for prejudgment attachment, Lien Law article3-A violations, breach of contract and quantum meruit. Defendants made a pre-answermotion to dismiss the complaint for failure to state a cause of action (see CPLR3211 [a] [7]) and also asserted the statute of frauds as an alternative ground to dismissthe breach of contract cause of action (see CPLR 3211 [a] [5]). Supreme Courtdismissed the cause of action that was labeled as being for prejudgment attachment, butotherwise denied defendants' motion. Defendants appeal.[FN1]
[*2] We affirm. "When assessing the adequacy of acomplaint in light of a CPLR 3211 (a) (7) motion to dismiss, the court must afford thepleadings a liberal construction, accept the allegations of the complaint as true andprovide plaintiff[s] . . . 'the benefit of every possible favorableinference' " (AG CapitalFunding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591[2005], quoting Leon v Martinez, 84 NY2d 83, 87 [1994]). "Whether theplaintiff[s] 'can ultimately establish [their] allegations is not part of the calculus indetermining a motion to dismiss' " (J.P. Morgan Sec. Inc. v Vigilant Ins. Co., 21 NY3d 324,334 [2013], quoting EBC I, Inc.v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). "Courts may consideraffidavits submitted in opposition to such a motion to cure any defects in the complaint"(Torok v Moore's Flatwork& Founds., LLC, 106 AD3d 1421, 1421 [2013]; see Sargiss v Magarelli, 12NY3d 527, 531 [2009]).
With respect to the cause of action under Lien Law article 3-A, such statute appliesto improvements to real property and imposes certain obligations on entities or personsdeemed trustees under the statute to ensure payment to beneficiaries (see LienLaw §§ 70, 71; Mount Vernon City School Dist. v Nova Cas. Co., 19 NY3d28, 37 [2012]; NYProfessional Drywall of OC, Inc. v Rivergate Dev., LLC, 100 AD3d 216, 219[2012]). The relevant statutory definitions provide, among other things, that a trusteeincludes a contractor or subcontractor (see Lien Law § 70 [2]), anda beneficiary includes a materialman (see Lien Law § 71 [2]). Amaterialman is defined as, among other things, one who furnishes "machinery" or"equipment" used by a contractor or subcontractor in a project improving real property(Lien Law § 2 [12]; see Matter of P. J. Carlin Constr. Co. v A to ZEquip. Corp., 31 AD2d 546, 546 [1968]; 8-92 Warren's Weed, New York RealProperty § 92.10 [5] [h] [2015]). In their pleadings, as well as affidavitssubmitted in opposition to the motion (including affidavits from former employees ofdefendants), plaintiffs indicated that the subject excavators were used by defendants toperform work improving real property for public and private entities on numerousconstruction projects where defendants were contractors or subcontractors. Plaintiffsfurther asserted that they entered into a series of oral agreements with defendantsregarding the use of the excavators during such time period and that they were not paidany rental amounts. These allegations are sufficient to state a cause of action under LienLaw article 3-A.[FN2]
The remaining arguments do not require extended discussion. Although the nature,length and terms of the purported oral agreements between plaintiffs and defendantsregarding the excavators are sharply contested, nevertheless, there are ample allegationsin the pleadings and assertions in plaintiffs' affidavits to avoid CPLR 3211 (a) (7)dismissal of the causes of action for breach of contract and quantum meruit (see Hyman v Burgess, 125AD3d 1213, 1214-1215 [2015]; Schultz Constr. v Franbilt, Inc., 285 AD2d936, 937-938 [2001]). Nor was the statute of frauds defense under General ObligationsLaw § 5-701 (a) (1) absolutely established since there are allegationsindicating not simply a single agreement spanning more than a year, but, instead, a seriesof agreements. In such regard, defendants failed to show that the oral [*3]agreements alleged by plaintiffs, "by their terms, 'haveabsolutely no possibility in fact and law of full performance within one year' "(Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998], quoting D & NBoening v Kirsch Beverages, 63 NY2d 449, 454 [1984]; see Gizara v New York TimesCo., 80 AD3d 1026, 1028 [2011]). Finally, contrary to the contention ofdefendant BS Industrial Contractors, Inc., there are sufficient allegations of itsinvolvement in the purported agreements to avoid dismissal as to it at this proceduralpoint in the litigation (see e.g.CR Best Rd., LLC v Camps Mogen Avraham, Heller, Sternberg, Inc., 103 AD3d1075, 1076 [2013] [on an appeal from a CPLR 3211 motion, "a minimal showing ofpotential merit will avoid dismissal"]).
Peters, P.J., Garry, Rose and Clark, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote 1:The filing of anamended complaint while the motion was pending does not, as urged by plaintiffs, renderthis appeal moot. The amended complaint was served prior to the parties' appearancebefore Supreme Court to argue the motion. Moreover, the minor additions in theamended complaint did not substantively alter the challenged causes of action (see Marston v General Elec.Co., 121 AD3d 1457, 1457 n 1 [2014]; Aetna Life Ins. Co. v Appalachian Asset Mgt. Corp., 110 AD3d32, 39 [2013]).
Footnote 2:Defendants' argumentregarding the statute of limitations applicable to the Lien Law was raised for the firsttime in their reply brief and, as such, is not properly before us (see Matter of Claydon, 103AD3d 1051, 1054 [2013]).