176 WASHINGTON PARK LLC v. EMPIRE CORE GROUP LLC (2024)

Plaintiff, 176 Washington Park LLC, moves under Lien Law § 38 for an order requiring defendant, Empire Core Group LLC, to provide a verified itemized statement of mechanic's lien (or discharging the lien if defendant fails to provide a satisfactory itemized statement as required by the court). The motion is granted in part and denied in part.

Lien Law § 38 requires a lienor, upon demand by the owner or contractor, to provide a written statement “set[ting] forth the items of labor and/or material and the value thereof which make up the amount for which [the lienor] claims a lien.” A § 38 statement must include the “description, quantity and costs of various kinds of materials,” and “details as to the nature of labor, time spent and hourly or other rate of labor charges.” (See 819 Sixth Ave. Corp. v. T. & A. Assocs., Inc., 24 AD2d 446, 446 [1st Dept 1965].)

With respect to labor, defendant asserts that it sufficiently identified the workers engaged in the project by specifying the dates of their service and the associated costs for each period worked. (See NYSCEF No. 14 at ¶ 14.) This claim is unpersuasive. Defendant only identifies 10 general “classifications” of costs—such as “Porta Potty,” “Construction Site Signs,” “DOB Drawings,” “DOT Permits,” and “Waste Removal”—without specifying the nature of the labor within those classifications or the hours (and wages) expended. (See NYSCEF No. 16 at ¶¶ 8-9.) Moreover, defendant identifies 27 payments to “subcontractors” as additional labor costs; but it does not identify the name of the subcontractors receiving payment, what work was performed by each subcontractor, and how each subcontractor was charged for what period of work. (See id. at ¶ 10). With respect to materials, defendant claims that its itemized statement satisfies the requirement of Lien Law § 38 because it includes information about the materials suppliers and the corresponding amounts disbursed. (See NYSCEF No. 14 at ¶ 15). But the statement does not specify either quantity or costs of the materials used on the project. (See NYSCEF No. 16 at ¶ 11). That is insufficient.

Accordingly, it is

ORDERED that plaintiff's motion to require defendant to provide a proper verified itemized statement satisfying the requirements of Lien Law § 38 is granted; and it is further

ORDERED that defendant shall provide plaintiff that verified itemized statement within 30 days of entry of this order; and it is further

ORDERED that if defendant does not do so, this court will enter an order discharging defendant's mechanic's lien on five days notice, upon the written request of plaintiff (to be made by letter submitted to the court by e-filing on NYSCEF and email to SFC-Part7-Clerk@nycourts.gov).

Gerald Lebovits, J.