Argued
- October 17, 2017
D54143
G/hu
Joseph
A. Fazio, Mineola, NY, for defendants-appellants and
defendant third-party plaintiff-appellant.
Anthony A. Capetola, Williston Park, NY (Robert Johnson
ofcounsel), for plaintiff-respondent and third-party
defendants-respondents.
JOHN
M. LEVENTHAL, J.P. CHERYL E. CHAMBERS JOSEPH J. MALTESE
COLLEEN D. DUFFY, JJ.
DECISION & ORDER
Appeal
from a judgment of the Supreme Court, Nassau County (Timothy
S. Driscoll, J.), entered November 3, 2016. The judgment,
insofar as appealed from, after a nonjury trial, (1)
dismissed the counterclaims asserted by the defendants
Rossana Storani and Bryan Gallagher and the defendant
third-party plaintiff, Bryan's Quality Plus, LLC, as
against the plaintiff, (2) dismissed the third-party
complaint asserted by the defendant third-party plaintiff,
Bryan's Quality Plus, LLC, and (3) directed the defendant
third-party plaintiff, Bryan's Quality Plus, LLC, to
deliver certain property to the plaintiff.
ORDERED
that the judgment is affirmed insofar as appealed from, with
costs.
This
action arises out of contractual disputes pertaining to two
construction projects. In May 2013, Park Side Construction
Contractors, Inc. (hereinafter Park Side), entered into
subcontracts with Bryan's Quality Plus, LLC (hereinafter
BQP), a "piling contractor, " for drilling services
at a construction site in Brooklyn and another in Manhattan.
In the
middle of drilling at the Brooklyn site, BQP encountered
difficulties with the soil, which required that it make
changes to the means and methods of drilling. When BQP
completed the project, it sought additional payments from
Park Side to cover expenses arising from the changes, which
Park Side rejected.
On the
Manhattan site, BQP never had an opportunity to start
drilling because there was a stop-work order in effect.
Before it learned of the stop-work order, BQP acquired
materials for the project. Park Side made payments for the
materials. BQP kept the materials in storage with the
expectation that construction would soon commence. However,
Park Side hired a different subcontractor to perform drilling
on the Manhattan site.
In
January 2014, BQP filed notices of mechanic's lien for
the sums of $711, 637.63 and $410, 337, respectively,
representing the additional work it performed on the Brooklyn
site, and an allegedly unpaid balance for materials provided
to, and work performed in connection with, the Manhattan
site. The liens were subsequently discharged pursuant to Lien
Law § 19(4) by the filing of undertakings in an amount
that represented 110% of each lien. Darwin National Assurance
Company (hereinafter Darwin) served as surety for Park Side
on both lien discharge bonds.
In
February 2014, Park Side commenced this action against BQP,
its president, Rossana Storani, and her husband, Bryan
Gallagher (hereinafter collectively the BQP parties),
seeking, inter alia, (1) an order of seizure over the
materials that it had purchased for, and which BQP never
delivered to, the Manhattan site, (2) a declaration that the
mechanic's liens were void pursuant to Lien Law §
39, and (3) damages for the amounts demanded by the liens in
excess of the costs of materials or labor actually provided,
together with costs and attorneys' fees. The BQP parties
asserted counterclaims seeking, inter alia, to foreclose on
the mechanic's liens, and damages for Park Side's
alleged breach of the subcontracts. In June 2014, BQP
commenced a third-party action against, among others, Darwin,
as surety to Park Side, to foreclose on the mechanic's
liens.
In
December 2014, Park Side moved for the summary discharge of
the mechanic's liens, arguing that the notices for the
liens were fatally flawed because BQP provided a post office
box address, rather than the address for its principal place
of business in New York State. The BQP parties cross-moved
for leave to amend the notices of mechanic's lien nunc
pro tunc. In an order entered July 21, 2015, the Supreme
Court denied Park Side's motion, and granted the BQP
parties' cross motion.
Park
Side appealed from that order. Although, for the reasons set
forth in our decision and order on the related appeal, that
appeal was dismissed (see Park Side Constr. Contr., Inc.
v Bryan's Quality Plus, LLC,
___A.D.3d___[Appellate Division Docket No.
2015-06772; decided herewith]), the issues raised therein are
brought up for review ...