Argued-June 1, 2017
Trivella & Forte, LLP, White Plains, NY (Jonathan
Bardavid of counsel), for appellant.
Sciascia, New York, NY (Daniel H. Crow of counsel), for
M. LEVENTHAL, J.P. L. PRISCILLA HALL SYLVIA O. HINDS-RADIX
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
action, inter alia, to foreclose a public improvement
mechanic's lien, the plaintiff appeals (1) from an order
of the Supreme Court, Kings County (Jimenez-Salta, J.), dated
November 13, 2015, which denied its motion for leave to serve
a supplemental summons and amended complaint adding Pavarini
McGovern, LLC, as a party defendant, and granted the cross
motion of Pavarini McGovern, LLC, to discharge a public
improvement mechanic's lien filed on or about February 6,
2015, and (2), as limited by its brief, from so much of an
order of the same court dated June 19, 2016, as denied those
branches of its motion which were for leave to renew its
prior motion and to renew its opposition to the cross motion.
that the order dated November 13, 2015, is reversed, on the
law and in the exercise of discretion, the plaintiffs motion
for leave to serve a supplemental summons and amended
complaint adding Pavarini McGovern, LLC, as a party defendant
is granted, and the cross motion of Pavarini McGovern, LLC,
to discharge the public improvement mechanic's lien filed
on or about February 6, 2015, is denied; and it is further,
ORDERED that the appeal from the order dated June 19, 2016,
is dismissed as academic in light of our determination on the
appeal from the order dated November 13, 2015; and it is
further, ORDERED that one bill of costs is awarded to the
plaintiff, payable by Pavarini McGovern, LLC.
2010, the defendant New York City School Construction
Authority (hereinafter the SCA) awarded Pavarini McGovern,
LLC (hereinafter Pavarini), a contract whereby Pavarini would
serve as the general contractor on a school construction
project. Pavarini entered into a subcontract with the
defendant Darcon Construction, Inc. (hereinafter Darcon), and
Darcon, in turn, entered into a subcontract with the
about May 6, 2011, the plaintiff filed a notice of a public
improvement mechanic's lien (hereinafter the 2011 lien)
with respect to its work on the project. The lien incorrectly
listed the general contractor as Darcon. In December 2011,
the plaintiff commenced this action, inter alia, to foreclose
the 2011 lien. In January 2015, the SCA informed the
plaintiff that the 2011 lien had been improperly docketed
against the wrong contract, and that it should have been
docketed against the contract that the SCA had awarded to
Pavarini. On or about February 6, 2015, the plaintiff filed a
new notice of a public improvement mechanic's lien
(hereinafter the 2015 lien) regarding the same work, this
time listing Pavarini as the general contractor.
2015, the plaintiff moved for leave to serve a supplemental
summons and amended complaint adding Pavarini as a defendant.
The proposed amended complaint sought to foreclose the 2015
lien, as opposed to the 2011 lien. Pavarini cross-moved to
discharge the 2015 lien on the ground that it was untimely
filed. The Supreme Court denied the plaintiff s motion and
granted Pavarini's cross motion. We reverse.
a general rule, leave to amend a pleading pursuant to CPLR
3025(b) should be freely granted in the absence of prejudice
or surprise resulting from the delay in seeking leave, unless
the proposed amendment is palpably insufficient or patently
devoid of merit" (Sabatino v. 425 Oser Ave.,
LLC, 87 A.D.3d 1127, 1129; see Sinistaj v.
Maier, 82 A.D.3d 868, 869; WMC Mtge. Corp. v.
Vandermulen, 63 A.D.3d 1050). Here, there was no
surprise or prejudice to Pavarini resulting from any delay by
the plaintiff in seeking leave, and the proposed amendment
was neither palpably insufficient nor patently devoid of
merit. Accordingly, the Supreme Court improvidently exercised
its discretion in denying the plaintiff's motion for
leave to serve a supplemental summons and amended complaint
adding Pavarini as a defendant.
addition, the Supreme Court erred in granting Pavarini's
cross motion to discharge the 2015 lien. A public improvement
mechanic's lien may be filed "[a]t any time before
the construction or demolition of a public improvement is
completed and accepted by the . . . public corporation, and
within thirty days after such completion and acceptance"
(Lien Law § 12). "Such authority would seem to
include the right to file a second lien within the time so
provided, at least to cure an irregularity in a lien first
filed, or to reassert a lien when the prior one has been lost
by delay in its enforcement" (Berger Mfg. Co. v.
City of New York, 206 NY 24, 33). "'The
significant date in section 12 of the Lien Law is the
completion and acceptance by the public corporation. The
requirement is in the conjunctive and both branches must be
met... before the time starts running'" (Matter
of N.W. Developers v. Jeremiah Burns, Inc., 55 A.D.2d
580, 581, quoting Biondo v. City of Rochester, 18
A.D.2d 78, 84). "Both these requirements, completion and
acceptance, are usually questions of fact" (Milliken
Bros. v. City of New York, 201 NY 65, 71). Here, because
Pavarini failed to submit any evidence on its cross motion as
to when the public improvement was completed and accepted by
the SCA, it failed to demonstrate that the 2015 lien was
untimely filed (see Rivera v. Department of Hous.
Preserv. & Dev. Of the City of N.Y., 29 N.Y.3d 45,
53; Icdia Corp. v. Visaggi, 135 A.D.3d 820, 821).
plaintiff's remaining contention regarding the denial of
those branches of its motion which were for leave to renew
has been ...