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Due, in part, to increased construction activity, a renewed focus on project safety, and owners becoming more aware of their rights and remedies, Real Property Action and Proceedings Law (“RPAPL”) Section 881 continues to generate litigation and court decisions construing various provisions of the statute. Two recent decisions are of special note.

In Cucs Housing Develop. Fund Corp. IV. V. Aymes, 2019 WL 934935, 2019 N.Y. Slip Op. 30450 (Sup. Ct. N.Y. Co. Feb. 26, 2019), Judge Melissa A. Crane granted a developer the right to underpin its neighbor’s building, even though such access constitutes a permanent encroachment. While many practitioners and developers believe RPAPL Section 881 does not authorize a trespass of this nature, Justice Crane found to the contrary.

The specific facts of the case undoubtedly had something to do with the result. The petitioner-developer was in the early stages of building an affordable housing project to address the homelessness problem in New York City. The plans in question were approved after a two-year review process by the New York City Department of Buildings. The respondent-neighbor owned a vacant and unused building, without active utilities or security. When questioned at a hearing as to why he opposed the underpinning application, the neighbor, appearing pro se, responded, “I don’t have to have a reason… I just don’t want underpinning.” Furthermore, the Court found there was no feasible alternative to the underpinning, and that in cases such as Madison 96 Associated LLC v. 17 East 96th Owners Corp, 121 A.D.3d 605, 608, 995 N.Y.S.2d 553 (1st Dep’t 2014) and Matter of Tory Burch LLC v. Moskowitz, 146 A.D.3d 528, 43 N.Y.S.3d 901 (1st Dept’t 2017) the First Department seemed to recognize that underpinning could be authorized if it was “virtually unavoidable” or if the “reasonableness and necessity of the trespass” was clearly demonstrated. Accordingly, the Cucs Court authorized the underpinning.

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Disputes between owners of construction projects and contractors occasionally include allegations of fraud and intentional wrongdoing. In these instances, it is sometimes tempting to include a claim for civil liability under the Federal Racketeer Influenced and Corrupt Organizations Act (“RICO”). Successful prosecution of a civil RICO violation includes the recovery of treble damages and attorneys’ fees, among other things. However, successful RICO claims in the civil context are relatively rare. The courts have interpreted the RICO statute to make it exceedingly difficult for a construction law dispute to turn into a recoverable RICO violation. The case of Grace International Assembly of God v. Festa, (17-CV-7090)(E.D.N.Y. April 1, 2019) highlights the difficulties in bringing a civil RICO case.

In Grace, the Plaintiff retained defendant Falcon General Construction Services Inc. (“Falcon”) to act as its general contractor for a project involving Grace’s religious sanctuary. Defendant Festa, the president and sole shareholder of Falcon, met with representatives of Grace and allegedly made numerous fraudulent misrepresentations which Grace divided into two different categories. One set of misrepresentations related to the need for advance payment of certain monies, the use of those monies on the project, and the progress of the construction on the project (“The Project Invoices Fraud Scheme”). According to Grace, it relied on the misrepresentations of defendants when it made payments to them. Furthermore, according to Grace, defendants improperly failed to make payments to subcontractors who had fully performed their work while representing to Grace that those payments had been made (the “Subcontractor Nonpayment Fraud Scheme”).

After Grace terminated defendant Falcon from the project, it commenced a legal action in the federal district court for the Eastern District of New York, alleging, in part, the two related schemes referenced above. Plaintiff also relied on the same basic set of facts to allege various state law contract and fraud-based claims.

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Construction contracts typically contain detailed requirements regarding both the contents of documents which must be submitted during the course of a project, and when they must be submitted. It is often difficult to know when the content and the timing of these documents must strictly follow the letter of the contract, and when these requirements are more lax. All contracting parties should be aware, however, that when it comes to notices of termination, it is best to follow the terms of the contract carefully. If one does not, with certain narrow exceptions, the termination is likely to be found wrongful. The opinion in D. Owens Electric, Inc. v. J.W. Mays, Inc.  61 Misc.3d 1225(A) (Sup. Ct. Dutchess County 2018) is instructive on this point.

In D. Owens, J.W. Mays, Inc. (“Mays”) was the owner of the premises in question. Mays retained D. Owens Electric, Inc. (“Owens”) to perform certain demolition and roof work.

According to Mays’ contract with Owens, Mays was obligated to provide Owens with a written notice that it had failed to properly perform the work prior to a termination. In addition, pursuant to Mays’ contract with Owens, only the owner of Mays, or such other person designated in the Contract at the time of signing, was authorized to terminate the Contract by registered or certified mail.

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Contractor’s mechanic’s liens are based upon work actually performed (and unpaid). Often, contractors rely upon the payment requisitions they submitted to the owner to establish the claimed value of the work. Requisitions that were never submitted to or considered by an owner can also be used by a contractor on occasion to support its lien claim. That circumstance was addressed by the First Department in Ferro Fabricators, Inc. v. 1807-1811 Park Avenue Development Corp. 165 A.D.3d 572, 86 N.Y.S.3d 54 (1 st Dept. 2018).

The defendant in Ferro moved for summary judgment on, among other things, its counterclaim that Plaintiff’s mechanic’s lien was willfully exaggerated and thus subject to dismissal pursuant to Lien Law §39 and 39-a. Defendant pointed to the seventh payment requisition Plaintiffs had submitted, which alleged the work was only 78% complete. In opposition to the motion, however, Plaintiff provided the court with a subsequent (eighth) requisition, which had never been submitted to Defendant, but which alleged that 97% of the work was complete. Under those circumstances, the First Department held that the trial level court had properly denied Defendant’s summary judgment motion because there were disputed issues of material facts regarding the amount of work performed.

By its holding, the Court re-confirmed the long standing rule that a lienor is not strictly bound and limited by the requisitions it submitted during the course of the performance of its work. Any work which was performed after the last requisition was submitted may also form the basis of a lien. Indeed, the First Department specifically rejected Defendant’s argument that the work referenced in the eighth requisition should not be included in the lien claim merely because it was never submitted. In other words, while the timely submission of a requisition can often aid

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Construction companies, especially those engaged in large public works or private development projects, sometimes form joint ventures to pool their resources and perform work on jobs that  might be beyond their individual financial capabilities or technical expertise. Typically, the joint venture is formed for an individual project. As a result, the formation of the joint venture is often  not addressed with the same degree of formality and care as when a corporate entity is formed on a more permanent basis. Recently, in Slabakis v. Schik, 164 A.D.3d 454, 84 N.Y.S.3d 45 (1 st Dep’t 2018), the First Department addressed the requirements of forming a joint venture in the context of a dispute as to whether a proper joint venture had been formed.

The plaintiff in Slabakis alleged there was an oral joint venture agreement, and sued the defendant, its purported joint venture partner, for breach of contract, breach of fiduciary duty and related  wrongs. Defendant moved to dismiss, alleging that the complaint did not adequately allege the existence of a joint venture agreement. The trial level court denied the motion, holding that there was an issue of fact as to the viability of the complaint.

On appeal, the First Department reversed and dismissed the complaint, holding that the pleading was defective in two material respects. First, the Slabakis complaint failed to contain a mutual  promise that profits and losses would be shared to some degree. Instead, it indicated that all of the losses would be solely borne by the defendant. This was “fatal” to plaintiff’s claim that a joint  venture was created.

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On November 20, 2018, in Angelo A. Ferrara v. Peaches Café LLC, et al., 2018 WL 6047993 (N.Y. Nov. 20, 2018), the New York Court of Appeals upheld the Fourth Department’s decision in Ferrera v. Peaches Café LLC, 138 A.D.3d 1391, 30 N.Y.S.3d 765 (4th Dep’t 2016). As I discussed in my prior posts, “The Divide in Interpretations of Lien Law Section 3’s Consent Requirement Continues” and “Varying Interpretations of Lien Law Section 3’s Consent Requirement,” New York Courts have been at odds in their determinations of the consent requirement contained in Lien Law Section 3. Judge Wilson of the New York Court of Appeals clarified these distinctions in his recent decision.

The key facts in the underlying case are summarized as follows: Defendant Peaches Café LLC (“Tenant”) entered into a lease agreement (the “Lease”) with Defendant-Appellant COR Ridge Road Company, LLC, (“Landlord”), who also owned the subject premises. The Lease affirmatively required the Tenant to undertake the construction of various improvements at the premises. Specifically, the Lease detailed certain requirements for the electrical work. Nonparty Quinlan Ferrara Electric, Inc. (who assigned its claims to Plaintiff-Respondent Angelo A. Ferrara) (“Contractor”) contracted with Tenant to perform a portion of the electrical build-out work at the premises. Despite satisfactorily completing its work, Contractor was never paid the balance for its work performed. Accordingly, Contractor filed a mechanic’s lien against the premises and commenced a lien foreclosure action.

In the lien foreclosure action, the trial court granted Landlord’s motion to dismiss the complaint as against Landlord, because, according to Landlord, “it did not have any direct dealings with [Contractor] and did not explicitly consent to the specific electrical work performed by [Contractor.]” Peaches, 30 N.Y.S.3d at 767. The Fourth Department reversed the trial court, finding that that Landlord/owner’s consent for the electrical work was derived from the terms of the Lease, which obligated Tenant to install electrical upgrades on the premises. Thus, the Landlord/owner was obligated to pay for the reasonable value of Contractor’s services. Id at 768. Landlord appealed.

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As I previously noted in my post titled “Varying Interpretations of Lien Law Section 3’s Consent Requirement,” last year the New York Court of Appeals granted a motion for leave to appeal the Fourth Department’s decision in Ferrera v. Peaches Café LLC, 138 A.D.3d 1391, 30 N.Y.S.3d 765 (4th Dep’t 2016). The appeal was argued during the week of October 16, 2018, but the Court of Appeals has not yet issued a decision.

Lien Law Section 3 provides that a contractor “who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof … shall have a lien … upon the real property improved.” In the underlying Peaches case, the Fourth Department compared First, Second and Third Department decisions concerning Lien Law Section 3’s consent requirement, all of which found, at various times, “that a lien under Lien Law Section 3 is valid only when the property owner directly authorizes the contractor to undertake the relevant improvements.” Peaches, 30 N.Y.S.3d at 768 (emphasis added). The Fourth Department, however, concluded that “consent” should be broadly interpreted because the decisions of its sister departments could not be “squared” with Jones v. Menke, 168 N.Y. 61 (1901) or McNulty Bros. v. Offerman et al., 221 N.Y. 98 (1917), two Court of Appeals cases which have not been “overturned or disavowed.” Id. at 767-8.

In both Jones and McNulty, the Court of Appeals found, generally, that contractual obligations requiring a tenant to make certain improvements to the premises satisfied the consent requirement of Lien Law Section 3.  Id. at 676. As a result, the lien claims in those cases were permitted against the underlying owner’s property. Id. Accordingly, in Peaches, the Fourth Department determined that the owner’s consent could be implied by the terms of the subject lease, even though the owner did not provide direct consent to the contractor.

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Enforcing mechanic’s lien rights raises several issues which are distinct from the ability to simply file a mechanic’s lien. For example, a subcontractor must generally show that a “lien fund” existed between the owner and contractor at the time it filed its lien in order to successfully foreclose. Peri Formwork Systems, Inc. v. Lumbermens Mutual Casualty Co., 65 A.D.3d 533, 884 N.Y.S.2d 129 (2d Dep’t 2009); See also Van Clief v. Van Vechten 130 N.Y. 571 (1892). Some courts have recognized an exception when the general contractor issues back charges to a subcontractor after termination. See Spectrite Design LLC v. Elli N.Y. Design Corp., (16 Civ. 6154, N.Y.L.J. 120279380599) (S.D.N.Y., Decided July 26, 2017). Other courts have recognized that if payments are made by the owner in bad faith, and before they were otherwise due, a lienor’s ability to foreclose its mechanic’s lien should not be prejudiced. See Glens Falls Portland Tenant Co. v. Schenectady County Coal Co., 163 A.D. 757, 759-763, 149 N.Y.S. 189 (3d Dep’t 1914); Lawrence v. Dawson, 34 A.D. 211, 212-215, 54 N.Y.S. 647 (2d Dep’t 1898). The bad faith exception to the lien fund rule was recently addressed by the First Department in 3-G Services Limited v. SAPV/Atlas 845 WEA Associates NF, L.L.C., 162 A.D.3d 487, 79 N.Y.S.3d 24 (1st Dep’t 2018).

In 3-G, the owner moved to dismiss plaintiff subcontractor’s lien foreclosure claim by submitting proof that the owner had paid the contractor in full at the time the plaintiff’s lien was filed. Owner had terminated the contractor for convenience prior to the filing of the subcontrator’s lien, and issued final payment to the contractor at that time.

Plaintiff raised several grounds in attempt to show owner’s bad faith. It alleged that owner knew that the general contractor owed monies to the subcontractor when it terminated the general contractor for convenience, that the owner made an advance payment to the general contractor to avoid the Lien Law, and that owner opted to terminate general contractor for convenience when it could have terminated it for cause.

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Not all work performed at or related to a construction project can form the basis of a mechanic’s lien. Rather, one can only lien for work performed or materials furnished on a privately owned project for the “improvement of real property” as set forth in Lien Law § 3. Generally speaking, only work which contributes to a “permanent improvement” of the property in question is lienable  (Lien Law § 2(4)). Sometimes, however, work is performed even before any activities actually commence on a construction site, and the issue arises whether that work is lienable in any  circumstances. That matter was recently addressed by Justice Terry J. Ruderman of the Westchester Supreme Court in Matter of Old Post Road Associates, LLC, 60 Misc. 3d 391, 77 N.Y.S.3d 283  (Sup. Ct. Westchester Co. 2018).

In Old Post Road, LRC Construction LLC (“LRC”) performed pre-construction management services for a planned project in Rye, New York. Among other things, LRC updated the budget for the  project and attended meetings to discuss phasing in connection with a site plan approval application. LRC was eventually terminated and filed a mechanic’s lien for $250,000. Thereafter, Old Post Road Associates LLC (“Owner”) commenced a special proceeding to summarily discharge the mechanic’s lien pursuant to Lien Law § 19 because the work in question was allegedly not lienable.

Pursuant to Lien Law § 19, a lien may only be dismissed if “it appears from the face” of the lien that it is invalid. Owner here alleged it met this standard in its special proceeding because LRC’s lien merely alleged it performed “pre-construction management services.”

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Parties to contracts and courts continue to grapple with the distinctions between and among contribution, contractual indemnification and common law indemnification in a commercial/construction setting. A good example is the recent case of Matzinger v. MAC II (S.D.N.Y. 17 Civ. 4813, July 17, 2018).

Plaintiffs, the Matzingers, were the owners of a residential apartment in New York City. They retained Defendant MAC II, an interior design firm, to manage and oversee the renovation of their apartment. MAC II did not perform any actual construction work. Instead, through a series of purchase orders, it hired Fanuka to act as the general contractor. MAC II also hired TecDsign to install various audio-visual equipment. After the Matzingers moved into their apartment, they discovered various construction defects and incomplete work.

Accordingly, in 2017, the Matzingers sued MAC II, Fanuka and TecDsign for breaches of contract and related claims. Fanuka and TecDsign successfully moved to have the contract claims dismissed because they had no privity with Matzinger. After other claims were dismissed, The Matzingers’ only remaining claim was breach of contract against MAC II.

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