Decisions of Interest
Modern Era Construction, Inc. v. Shore Plaza, LLC, et al
Supreme Court, Richmond County (referred to Civil Court for trial pursuant to CPLR 325(d) Index No. 300066/07. In this case we represented Defendant Shore Plaza, LLC, the landlord/owner of the premises known as 1775 South Avenue, Staten Island, New York (the property). Plaintiff, a construction company (the Contractor), commenced this action against the Owner seeking to enforce a mechanic's lien Plaintiff filed against the property. The Plaintiff had been hired by the commercial tenant, the Zone Entertainment Center LLC (the Tenant), to demolish the existing three stores, combine them into one store, and renovate the space for use as an electronics store.
Prior to paying for the construction work the Tenant filed for bankruptcy protection. Plaintiff sought to enforce that lien against the owner under the Lien Law. The allegation was that the Owner had consented to the renovations, as required under the Lien Law. The consent, it was alleged, was an "implied consent" to do the work because the Owner entered into a written lease with the tenant for the space, And there was a prevision regarding the construction. The owner's defenses include: a) the language of the lease made it clear that this was not an implied consent to do the work as it required that the tenant obtain written approval from the landlord prior to doing any renovations, and such consent was never given; b) that the work done was not an "improvement" nor had the premises received any benefit from the work done; c) that the work was not done were issued or approvals obtained for the completed work. Thus, we argued that the Plaintiff was not entitled to payment for work done "illegally".
After a prolonged trial, the case was dismissed on the merits. The court first held that there had been no explicit consent and in fact, that the credible testimony of the Owner's witness was that the Plaintiff was told by the Defendant to stop work because there were no plans or permits filed with the municipal authorities or delivered to the Defendant as required by the lease. The court also held that the specific language of the lease made it clear that the tenant was not to make renovations without obtaining the consent of the Defendant-Landlord and there was no contradiction to the fact that such held that Owner had proved that the Tenant was in complete non-compliance with the requirements of the lease, and the mere fact that the Owner did not bring an action against the tenant for non-compliance with the lease, merely showed, at best, a "mere acquiescence", not an affirmative act, and so liability against the owner could not be enforced. Therefore, it was held that the actions or inactions of the Owner did not amount to the consent necessary to permit the Plaintiff to enforce the mechanic's lien against the Owner.