24ft. SHORT FORM ORDER Present: SUPREME COURT HON. THOMAS P. PHELAN. Z. CONSTRUCTION INC., individually and in a representative capacity on behalf of a Lien Law Article 3-A Trust -against - Plaintiff( s), STATE OF NEW YORK Justice TRIAL/lAS, PART 10 NASSAU COUNTY ORIGINAL RETURN DATE: 04/27 /04 SUBMISSION DATE: 05/17/04 INDEX No. : 012271/01 RFB ENTERTAINMENT INC. a/k/a R. ENTERTAINMENT INC. and/or R.F. ENTERTAINMENT and/or d/b/a HUDSON & McCOY, FRANK BASILE, RAYMOND McDEVITT, BARRTT CO. INC., STATE OF NEW YORK and "JANE AND JOHN DOES" numbered 1-100, said persons and/or entities being fictitious and intended to represent all occupants of the subjec! premises and those with an interest in the case at bar MOTION SEQUENCE #1 Defendant( s). The following papers read on this motion: Notice of Motion... Answering Papers.. Reply.. Plaintiff brings this action to foreclose on its mechanics lien dated February 7, 2000 filed on February 17, 2000 in the sum of $19, 800 against certain property known as 34 W oodcleft Avenue, Freeport, N., as well as for a money judgment in the sum of $19, 800 against defendants RFB Entertainment and Frank Basile upon various theories of recovery.
RE: AFZ CONSTRUCTION v. RFB ENTRTAINMNT Page 2. As appears from the papers before the court, defendant RFB. Entertainment (RFB) is the lessee of the property and defendant Fran Basile is a shareholder in RFB. Defendant Raymond McDevitt was the owner/landlord of the property when the constrction work, upon which plaintiff claims to be owed $19 800, was performed and when the lease with RFB was entered into. It further appears that on August 23, 2000 defendant McDevitt transferred his interest in the subject premises to the McDee Family Limited Partnership (MFLP) of which he is a parter. Said deed, however, was not filed until on or about June 19, 2002, nearly one year after plaintiff commenced the within action by filing a copy of the summons and complaint on August 7, 2001. By this motion defendant McDevitt and non-pary MFLP seek an order (1) amending the title of this action to substitute MFLP as defendant in his place and stead; (2) dismissing the complaint against MFLP; (3) declaring the notice of mechanics lien null and void and directing the County Clerk to vacate and cancel same; and (4) severing McDevitt' s cross-claim against RFB and directing a hearing to fix McDevitt' s recovery thereon. Although no party identifies any statutory framework or case law for determning the issue of substitution CPLR 1012 and 1018 are clearly implicated. CPLR 1012(a)(3) permits intervention by a non-part as of right "when the action involves the disposition of, or the title or a claim for damages for injury to property and the person may be affected adversely by the judgment". Since plaintiff' s cause of action to foreclose on its mechanics lien impacts directly on MFLP' interest in the subject premises, intervention as of right is warranted. Similarly, CPLR 1018, while providing for continuation of an action against the original paries upon " transfer of interest", also contemplates substitution or joinder of the person to whom the interest is transferred. Plaintiff seeks no monetary recovery against McDevitt, who is no longer the owner of the premises. Neverteless, joinder ofmflp is warranted instead of substitution for McDevitt since to hold otherwise would effectively extinguish McDevitt' s cross-claim against RFB. That branch of the motion by defendant McDevitt and intervenor defendant MFLP, which seeks an order pursuant to CPLR 3211(a)(7) or 3212 dismissing plaintiff' s foreclosure cause of action as plaintiff' s mechanics lien is null and void is granted. The standards for summar judgment are well settled. A court may grant summary judgment where there is no genuine issue of a material fact, and the moving part is, therefore, entitled to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320). Thus, when faced whh a summary judgment motion, a court s task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter; its task is to determine whether or not there exists a
RE: AFZ CONSTRUCTION v. RFB ENTERTAINT Page 3. genuine issue for trial (Miler v Journal-News, 211 AD2d 626). The burden on the par moving for summar judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering suffcient evidence to demonstrate the absence of any material issue of fact (Ayotte v Gervasio, 81 NY2d 1062). If this initial burden has not been met, the motion must be denied without regard to the suffciency of opposing papers (ld. Alvarez v. Prospect Hosp, 68 NY2d 320). However, once this initial burden has been met by movant, the burden shifts to the party opposing the motion to submit evidentiary proof in admissible form suffcient to create material issues of fact requiring a trial to resolve ( Id.. Mere conclusions and unsubstantiated allegations or assertions are insuffcient (Zuckerman v. City of New York, 49 NY2d 557, 562) even if alleged by an expert (Alvarez v Prospect Hospital supra Aghabi v. Sebro, 256 AD2d 287). Section 11 of the' Lien Law provides ili relevant par as follows: "Within five days before or thirty days after filing the notice of lien, the lienor shall serve a copy of such notice upon the owner.... Failure to file proof of such a service with the County Clerk within thirt-five days after the notice of lien is filed shall terminate the notice as a lien. Courts have no discretion to excuse the failure to timely file proof of service of the notice of lien (Outrigger Constr. Co.. Inc. v. Nostrand Ave. Dev. Corp., 217 AD2d 689; Matter of Podolsky v. Narnoc Corp., 196 AD2d 593). In support of dismissal, McDevitt provides the affrmation of his counsel who states that his personal search of the records maintained by the Nassau County Clerk "disclosed that the plaintiff has not fied proof of service of its Notice of Mechanics Lien on McDEVITT or upon any other defendant named in this action" (Affrmation of Jay A. Marshall, Esq., dated April 9, 2004, '9). The burden then shifted to plaintiff to establish the requisite filing. In opposition, plaintiff provides a copy of an affdavit of service of the notice of Mechanics Lien upon defendant Basile which bears a stamp by the County Clerk indicating that it was received within the thirty-five day period. Basile however was not the property owner of record. The affidavit of service upon McDevitt provided by plaintiff bears no such County Clerk' s stamp. Plaintiff additionally provides an affdavit by Jacqueline Nash, the former president of Long Island Credit Associates Ltd., which was engaged in the business of fiing mechanic s liens in the State of New York. While Ms. Nash states that the books and records of her company indicate that the affdavit of service upon McDevitt was fied on February 17, 2000, her conclusory allegation is insufficient to create an issue of fact in this regard. Nor does Ms. Nash' s supervision of the fiing of the notice of lien itself translate into personal knowledge of the filing of proof of service of said lien upon McDevitt.
RE: AFZ CONSTRUCTION v. RFB ENTERTAINT Page 4. Accordingly, plaintiff' s first cause of action which seeks to foreclose its mechanic s lien on the subject property is summarily dismissed. Plaintiff' s lien is null and void and movants may submit a furter order directing the Nassau County Clerk to vacate and cancel said lien upon payment of the required fee, if any. Furter, defendant McDevitt' s cross-claim against RFB is ripe for sumary determination. The lease between McDevitt as landlord and RFB as tenant provides in relevant part at follows:, as the result of the performance of any work requested by the tenant at the demised premises, a mechanics lien is fied against all or par of the demised premises (whether or not such lien is valid or enforceable), the tenat agrees cause the same to be canceled and discharged of record or bonded at the tenant' sole cost and expense within thirty (30) days after the filing of the lien. The tenant further agrees to indemnify and hold the landlord harmless from any and all costs, expenses, claims losses and/or damages, including reasonable counsel fees, resulting from the filing of a mechancs lien. rider '17 as McDevitt has provided uncontroverted evidence of his entitlement to recover from RFB all reasonable legal fees, costs and expenses incurred by him resulting from the filing of the lien. This cross-claim is severed (see CPLR 3212(e)(I)) and shall be the subject of a hearing to fix said award. Subject to the approval of the Justice there presiding and provided a Note of Issue has been filed by McDevitt at least 10 days prior thereto, this matter shall appear on the calendar of the Calendar Control Part (CCP) for the 13th day of July, 2004 at 9:30 A. A copy of this order shall be served on the Calendar Clerk and accompany the Note ofissue when fied. The failure to fie a Note of Issue or appear as directed may be deemed an abandonment of the claims giving rise to the hearing. The directive with respect to a hearing is subject to the right of the Justice presiding in CCP to refer the matter to a Justice, Judicial Hearing Offcer or a Court Attorney/Referee as he or she deems appropriate. Movant is directed to serve a copy of this order upon all parties within 15 days after receipt of a copy of this order from any source. 1 The Note of Issue to be filed by McDevitt required for this framed issue hearing is separate and distinct from the Note of Issue directed to be fied by plaintiff in this Court' certification order dated May 13, 2004 for purposes of trial of the main action.
--- RE: AFZ CONSTRUCTION v. RFB ENTERTAINMNT Page 5. As plaintiff' s remaining claims seek relief only against defendants RFB or Basile, or both, the title of this action is amended to read as follows: Z. CONSTRUCTION INC., individually and in a representative capacity on behalf of a Lien Law Article 3-A Trust, -against- Plaintiff RFB ENTERTAINMENT INC. a/k/a R.F. ENTERTAINMENT INC. and/or R. ENTERTAINMENT and/or d/b/a HUDSON & McCOY and FRANK BASILE Defendants. " This decision constitutes the order of the court. Dated: '6-0f HON THOMAS P. PHELAN J.S. tenter ED JUN 0 3 lofi Nl1- AU COUNTY CLERK' S OFFICE