Commercial Division Blog

Posted: September 29, 2021 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Seth D. Allen, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Summary Judgment

Summary Judgment for Mechanic's Lien Inappropriate Where Defendant Failed to Account for All Items Listed in Lien Statement

On September 15, 2021, the Second Department issued a decision in J&M Indus., Inc. v Red Apple 180 Myrtle Ave. Dev., LLC, 2021 NY Slip Op 04966, holding that where a defendant moved for summary judgment on a mechanic’s lien on the grounds that the plaintiff executed a series of releases in connection with payments received that exceeded the total amount the plaintiff sought in an itemized lien statement, summary judgment should be denied where defendant failed to put forth evidence accounting for all of the items in the lien statement, explaining:

A defendant moving for summary judgment on a counterclaim generally has the burden of establishing, prima facie, "all of the essential elements of the [counterclaim]" (Nunez v Chase Manhattan Bank, 155 AD3d 641, 643; see Shah v Mitra, 171 AD3d 971, 979; see generally Stukas v Streiter, 83 AD3d 18, 23). "By contrast, a defendant moving for summary judgment dismissing one of the plaintiff's causes of action may generally sustain his or her prima facie burden 'by negating a single essential element' of that cause of action" (Sterling Park Devs., LLC v China Perfect Constr. Corp., 185 AD3d 1082, 1084, quoting Nunez v Chase Manhattan Bank, 155 AD3d at 643; see Poon v Nisanov, 162 AD3d 804, 806).

"It is a defendant's burden, when it is the party moving for summary judgment, to demonstrate affirmatively the merits of a defense [or counterclaim], which cannot be sustained by pointing out gaps in the plaintiff's proof" (Quantum Corporate Funding, Ltd. v Ellis, 126 AD3d 866, 871; see Nill v Schneider, 173 AD3d 753, 755). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324; see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Here, as the Supreme Court correctly concluded, the defendants' evidentiary submissions failed to account for, or otherwise address, numerous items listed in the plaintiff's itemized lien statement (see Lien Law § 38), and the defendants otherwise failed to demonstrate that all of the amounts allegedly due under the subject contract had been paid in full. Furthermore, the defendants failed to demonstrate that the releases executed by the plaintiff barred the relief sought in this action (see generally Lien Law § 34). Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the first and fourth causes of action and discharging the mechanic's lien, and for summary judgment on their first counterclaim, the court properly denied those branches of their motion without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).

The attorneys at Schlam Stone & Dolan frequently litigate issues related to enforcement of mechanic’s liens.  Contact our attorneys at if you or a client have questions regarding the enforcement of a mechanic’s liens.