Imperial Bldg. & Restoration v. Lin-Abcede

2023 NY Slip Op 50388(U)

Imperial Building & Restoration Inc., Plaintiff, v. Cindy Lin-Abcede and MARTIN ABCEDE, Defendant.

Index No. 150017/2023

Supreme Court, Richmond County

April 27, 2023

Unpublished Opinion

Attorney for Plaintiff: Nicholas M. Moccia, Esq. Law Office of Nicholas M. Moccia P.C.

Attorney for Defendant: Rebecca A. Valk, Esq. Rebecca A Valk, PLLC

Ronald Castorina, Jr., J.

The following e-filed documents listed on NYSCEF (Motion #001) numbered 5-31 were read on this motion.

Upon the foregoing documents, and after oral argument conducted on March 30, 2023, Motion Sequence #001 is resolved as follows it is hereby:

ORDERED that the Defendant's motion pursuant to CPLR § 3211 [a] [7] for dismissal of the Plaintiff's third cause of action in the amended verified complaint is GRANTED, with prejudice and without leave to replead, and it is further;

ORDERED, that the Defendant's motion for sanctions consisting of damages due to the delay in closing the sale of 223 Gordon Street, Staten Island, costs, and attorney's fees, pursuant to 22 NYCRR 130-1.1 against both Plaintiff and its counsel is DENIED, with prejudice, and it is further;

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

Memorandum Decision

I. Procedural History

Plaintiff commenced the instant action against Defendants ABCEDE for breach of contract and for Quantum Meruit for goods and services supplied, against Defendant Yoder Pursuant to General Obligations Law § 11-104, and for an equitable lien against 233 Gordon Street, Staten Island, New York.

Defendants Cindy Lin-Abcede, Martin Abcede, and Robert Yoder, a non-party, filed Motion Sequence #001 on January 26, 2023, seeking (a) to dismiss the cause of action pursuant to Civil Practice Law and Rules (CPLR) § 3211 [a] [7] asserting an equitable lien for failure to state a cause of action and, upon dismissal, vacate the Notice of Pendency filed against the property at 233 Gordon Street, Staten Island, New York, and (b) sanctions, after an inquest consisting of damages due to the delay in closing the sale of the aforementioned property, costs and attorney fees pursuant to 22 NYCRR § 130-1.1 against both Plaintiff and counsel. Plaintiff filed opposition in Cross Motion Sequence #002 on February 28, 2023. Defendant filed reply on March 9, 2023. Oral argument was heard on March 30, 2023

On April 6, 2023, on consent of the parties, Cross Motion #002 was granted in its entirety by short form Order. (NY St Cts Filing [NYSCEF] Doc No. 30). Motion Sequence #002 granted Plaintiff leave to amend its complaint, discontinued the action without prejudice against Defendant Robert Yoder, and amended the caption to remove Defendant Yoder. Parties also agreed that "[i]n the interest of judicial economy, Defendants' motion to dismiss Plaintiff's cause of action for the imposition of an equitable lien [Motion Sequence #001] shall be deemed to pertain to Plaintiff's third cause of action in the Plaintiff's proposed amended complaint [see NY St Cts Filing [NYSCEF] Doc No. 31] for the imposition of an equitable lien." (NY St Cts Filing [NYSCEF] Doc No. 30).

II. Facts

On or about October 17, 2019, Defendants, Cindy Lin-Abcede and Martin Abcede, entered into a home improvement contract with Plaintiff to perform certain improvements on residential property located at 223 Gordon Street, Staten Island, New York (NY St Cts Filing [NYSCEF] Doc No. 26). Disagreements arose between the parties and Plaintiff's services were terminated. Plaintiff alleges the renovations set forth in the contract were fully performed, but Defendants were unable to tender the full contract price and had an unpaid balance of $34,980.00. Plaintiff further contends that on or about November 10, 2019, the Defendants changed the locks on the premises and Plaintiff was unable to retrieve tools, valued at $2,882.00.

Plaintiff filed a Mechanic's lien on May 12, 2021 (NY St Cts Filing [NYSCEF] Doc No. 8). Plaintiff failed to either foreclose on the mechanic's lien or seek to have it extended as required by the Lien Law. The mechanic's lien was discharged by Order of this Court dated January 4, 2023 (NY St Cts Filing [NYSCEF] Doc No. 8). Defendants allege that immediately following the discharge of the mechanic's lien, Plaintiff's counsel transmitted the Summons and Complaint with Notice of Pendency in this action and an offer to engage in settlement negotiations. (NY St Cts Filing [NYSCEF] Doc No. 10).

Defendants purport that since Plaintiff had no defense to the dismissal of the mechanic's lien, Plaintiff now attempts to maintain a cause of action for an equitable lien. Defendant contends the cause of action for an equitable lien should be dismissed and Plaintiff and counsel should be sanctioned for maintaining the frivolous cause of action for an equitable lien simply to delay the sale of the 223 Gordon Street, Staten Island, New York, after the same was brought to their attention and after sufficient time has been provided to research the issue.

III. Sufficiency Claim for Equitable Lien

Plaintiff's Third Cause of Action for an Equitable Lien Against 233 Gordon Street, Staten Island, New York contends

26. Plaintiff fully performed renovations to the Subject Premises from the ABCEDE Defendants pursuant to an express or implied contract concerning the Subject Premises wherein there was a clear intent between the Plaintiff and the ABCEDE Defendants that such property be held, given or transferred as security for the satisfaction of the ABCEDE Defendants' obligation to the Plaintiff in the sum of $34,980.00.

27. Upon information and belief, the ABCEDE Defendants have listed the Subject Premises for sale, and stand to profit at the Plaintiff's expense due to Plaintiff's uncompensated improvement of the Subject Premises.

28. The ABCEDE Defendants have repudiated their obligation to satisfy their obligation to the Plaintiff from the proceeds of the sale of the Subject Premises.

29. The Plaintiff has no adequate remedy at law.

30. Accordingly, Plaintiff is entitled to the imposition of an equitable lien on the Subject Premises for a sum not less than $34,980.00. (NY St Cts Filing [NYSCEF] Doc No. 31).

Parties apparently entered a contract for Plaintiff to complete home renovations to the Defendants' subject premises as described in the itemized statement provided. (NY St Cts Filing [NYSCEF] Doc No. 26). Plaintiff alleges that on or about October 17, 2019, the Defendants entered into a contract with the Plaintiff for home improvements in the subject premises. (NY St Cts Filing [NYSCEF] Doc No. 31). Plaintiff contends that the Defendants breached this contract, by failing to pay Plaintiff for the work Plaintiff performed and the materials Plaintiff supplied under the terms of the contract and consequently, the Plaintiff has been damaged in a sum that is not less than $34,980.00 plus interest from November 5, 2019. (see id). Plaintiff also maintains that the reasonable value of the goods and services the Plaintiff supplied to the Defendants for the improvement of the subject is valued at $34,980.00 and if the contract is found to be unenforceable, the Defendants will be unjustly enriched at the Plaintiff's expense. (see id).

CPLR 3211 [a] [7] provides that a "party may move for judgment dismissing one or more causes of action asserted against him on the ground that the pleading fails to state a cause of action[.]" "In considering a motion pursuant to CPLR 3211 [a] [7] to dismiss a complaint for failure to state a cause of action, the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (see Green 333 Corp. v RNL Life Science, Inc., 186 A.D.3d 1334 [2d Dept 2020] citing Cortlandt St. Recovery Corp. v Bonderman, 31 N.Y.3d 30 [2018]; Korsinsky v Rose, 120 A.D.3d 1307 [2d Dept 2014]).

"On a motion to dismiss for failure to state a cause of action, 'the pleading is to be afforded a liberal construction'" (see Nassau Operating Co., LLC v DeSimone, 206 A.D.3d 920 [2d Dept 2022] quoting Leon v Martinez, 84 N.Y.2d 83 [1994] citing CPLR § 3026). "The facts alleged in the complaint must be accepted as true, and the plaintiff is entitled to receive the benefit 'of every possible favorable inference'" (see id quoting Leon v Martinez, 84 N.Y.2d 83 [1994]). However, "[d]ismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim" (see id quoting Connaughton v Chipotle Mexican Grill, Inc., 29 N.Y.3d 137 [2017] citing Myers v Schneiderman, 30 N.Y.3d 1 [2017]).

"New York law does not allow the imposition of an equitable lien unless there is an express or implied agreement that there shall be a lien on the specific property at issue" (see Matter of Saadia Safdi Realty, LLC v. Press 207 A.D.3d 633 [2d Dept 2022] citing M & B Joint Venture, Inc. v. Laurus Master Fund, Ltd., 12 N.Y.3d 798 [2009]; U.S. Bank N.A. v Saff, 191 A.D.3d 733 [2d Dept 2021]). "While [a] court will impose an equitable mortgage where the facts surrounding a transaction evidence that the parties intended that a specific piece of property is to be held or transferred to secure an obligation, it is necessary that an intention to create such a charge clearly appear from the language and the attendant circumstances" (see Deutsche Bank Trust Co. Ams. v. Cox, 110 A.D.3d 760 [2d Dept 2013] quoting Tornatore v. Bruno, 12 A.D.3d 1115 [4th Dept 2004]; citing Pennsylvania Oil Products Refining Co. v. Willrock Producing Co., 267 NY 427 [1935]; J.P. Morgan Chase Bank, N.A. v Cortes, 96 A.D.3d 803 [2d Dept 2012]; Fremont Inv. & Loan v Delsol, 65 A.D.3d 1013...