The following papers numbered 1 to 13 were read on this motion by defendant KIM SUTERA for an order directing the County Clerk of Queens County to discharge and cancel the Notice of Mechanic's Lien filed by plaintiff J. B. CUSTOM MASONRY & CONCRETE as against the defendant's property; for an order dismissing the plaintiff's second cause of action seeking foreclosure of the mechanic's lien; and for an order directing the County Clerk of Queens County to discharge and cancel the notice of pendency of action filed by plaintiff against the Sutera property located at 133-01 Rockaway Beach Boulevard, Belle Harbor, New York 11694:

Papers Numbered

Notice of Motion-Affidavits-Exhibits.................1 - 6

Affirmation in Opposition-Affidavits-Exhibits........7 - 10

Reply Affirmation...................................11 - 13 [*2]

_____________________________________ ___________________________

By supplemental summons and complaint filed on September 13, 2011, plaintiff J. B. CUSTOM MASONRY & CONCRETE, INC., a general contracting company, alleges that on January 11, 2010, it contracted with defendant Kim Sutera to provide labor and materials for remodeling and alterations on the plaintiff's home located at 133-01 Rockaway Beach Boulevard, Queens County, New York. The construction contract price was $377,000 of which the defendant paid $313,852.50, leaving a balance due of $63,147.50. Plaintiff claims that he performed all agreed upon work and is entitled to payment of the agreed upon price. Plaintiff filed a notice of pendency on August 23, 2011 and notice of mechanic's lien in the amount of $63,147.50 on May 19, 2011. The complaint asserts two causes of action, one for breach of contract for construction and improvements to the defendant's home and the second for foreclosure of the mechanic's lien filed with the County Clerk of Queens County on May 19, 2011.

Defendant Sutera claims that the plaintiff performed sub-standard work and as a result Ms. Sutera terminated plaintiff's services in February 2011 and hired a new general contractor to repair the plaintiff's prior work.

Prior to filing its answer, the defendant moved to dismiss the complaint pursuant to CPLR 3211 which motion was denied by this Court by decision and order dated February 1, 2012. Defendant served a verified answer on May 7, 2012 containing four separate counterclaims and 22 affirmative defenses including one stating that the mechanic's lien is improper and invalid as it was untimely filed. The defendant's counterclaims include breach of contract, breach of implied warranties, fraud and for a declaratory judgment that the mechanic's lien is void. Plaintiff served a reply to counterclaims on June 27, 2012.

In support of the motion to discharge the mechanic's lien and lis pendens, defendant submits a copy of the "Notice Under Mechanic's Lien Law" stating that the total amount claimed for which the lien was filed was $63,147.50 based upon materials furnished including roofing, custom bricks, and waste containers. The mechanic's lien was filed on May 19, 2011. The notice of pendency was filed against the defendant's property located at 133-01 Rockaway Beach Blvd, Belle Harbor, New York, on June 23, 2011.

Pursuant to Lien Law § 10(1):

"Notice of lien may be filed at any time during the progress [*3]of the work and the furnishing of the materials, or, within eight months after the completion of the contract, or the final performance of the work, or the final furnishing of the materials, dating from the last item of work performed or materials furnished; provided, however, that where the improvement is related to real property improved or to be improved with a single family dwelling, the notice of lien may be filed at any time during the progress of the work and the furnishing of the materials, or, within four months after the completion of the contract, or the final performance of the work, or the final furnishing of the materials, dating from the last item of work performed or materials furnished."

In plaintiff's Verified Supplemental Bill of Particulars dated March 7, 2013, it is stated that, "plaintiffs have not completed any further work on the premises, nor supplied any additional materials after January 7, 2011." Therefore, counsel asserts that the mechanic's lien, which was filed on May 19, 2011, is untimely as it was filed more than four months after completion of the work at the plaintiff' home. Counsel asserts that the premises upon which the lien is filed is a single-family dwelling and was a single-family dwelling at all times when the plaintiff performed work and furnished materials at the defendant's home and on May 19, 2011, the day of the filing of the subject mechanic's lien.

In support of the motion, the defendant submits an affidavit from licensed architect, Valentino Pompeo who was the architect for the remodeling/alteration of the defendant's residence. He states that the plans he submitted to the Building's Department involved the conversion of the residence from a pre-existing nonconforming two-family dwelling to a single-family dwelling. He states that to his knowledge the residence was continuously and exclusively used as a single-family dwelling from the time when the plaintiff first performed construction related work through May 9, 2011 and thereafter.

Ms. Sutera also submits an affidavit dated April 2, 2013, in which she states that "at all times relevant to this matter, from the date the plaintiff began work on her home through the date of filing of the subject mechanic's lien, through the present date, the sole use and purpose of the defendant's home is as a "single- family dwelling." She states that at all times when plaintiff performed work, labor and services or furnished materials to her residence the sole use and purpose of the property was as a single-family dwelling.

Counsel argues that as more than four months elapsed from [*4]the completion of the work to the time of the filing of the mechanic's lien that the lien must be cancelled and discharged as untimely pursuant to Lien Law §10 (citing Ren. Reh. Sys. Co., Inc. v Faulkner, 85 AD3d 752 [2d Dept. 2011]).

Secondly, counsel asserts that the if the mechanic's lien is discharged, than the second cause of action seeking foreclosure of the mechanic's lien must also be dismissed and the notice of pendency filed June 23, 2011, which is based upon the mechanic's lien, should also be discharged and cancelled as the judgment would not affect the title to or the possession or use of enjoyment of real property (see CPLR 6501, CPLR 6514).

In opposition, plaintiff's counsel submits that the filing of the mechanic's lien was timely as it was filed within the eight month time limit prescribed for multiple dwellings. Counsel states that as the plans submitted for the project included the conversion of a two-family dwelling to a single-family dwelling than the defendant's premises could not have been a single-family dwelling when the work began. The building permit application states that the application is made for renovation of an existing 2-story basement and convert 1-family on existing lot. Counsel claims that the status of the building at the time construction begins controls the statutory time period. Plaintiff further asserts that the nature of the work that is supposed to be performed does not convert the property to a single family dwelling until such time as the property is reclassified and thus the status of the building at the time that construction begins controls the time limit. Counsel contends that as this was a two-family dwelling that had not yet been converted at the time the work commenced, that the eight month time limit applies and the lien therefore was timely filed.

Upon review and consideration of the defendant's motion, plaintiff's affirmation in opposition and the defendant's reply thereto this court finds that the defendant's motion to discharge the mechanic's lien filed against the defendant's property is denied.

This court finds that the defendant failed to establish prima facie, as a matter of law, that the mechanic's lien was not timely filed. The defendant claims that the plaintiff failed to file the lien within the four month statute of limitations prescribed for single-family homes. However, although the defendant states in her affidavit that the she was using the premises as a one-family home at the time the plaintiff commenced work, based upon the affidavit of the architect who designed the [*5]alteration project, the premises was actually a two-family dwelling that was being converted into a single-family dwelling. The New York City Work Permit also indicates that the permit was for an alteration project and the application was to convert the premises to a one-family dwelling. Thus, even though the premises may have been used as a one-family dwelling at the time the project commenced, the evidence indicates that work being done by the contractor related to the conversion of a two-family dwelling. Thus, when the work began the premises constituted a multiple dwelling and the plaintiff properly served the notice within the applicable eight month statutory time period (see Griffin Bldg. & Constr. Corp. v RHD Constr. Corp., 133 Misc 2d 335 [Sup. Ct. Albany County. 1986][ the statute limits the application of the four month period to a single residence]).

Accordingly, for all of the above stated reasons it is hereby,

ORDERED that the defendant's motion to vacate the mechanics lien filed on May 19, 2012 and the notice of pendency filed on June 23, 2011 and to dismiss the second cause of action to foreclose on the mechanic's lien is denied.

Dated: May 2, 2013

Long Island City, NY

____________________

ROBERT J. MCDONALD

J.S.C.