NEGVESKY v. Planned System Integration, Ltd., appellant.

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Supreme Court, Appellate Division, Second Department, New York.

James NEGVESKY, et al., respondents, v. UNITED INTERIOR RESOURCES, INC., et al., defendants, Planned System Integration, Ltd., appellant.

Decided: August 29, 2006

A. GAIL PRUDENTI, P.J., WILLIAM F. MASTRO, ROBERT A. SPOLZINO, and MARK C. DILLON, JJ. Mikel J. Hoffman, P.C. (Reilly & Reilly, Mineola, N.Y. [John J. Reilly] of counsel), for appellant. Barry A. Wadler, New York, N.Y., for respondents.

In an action, inter alia, to recover damages for unjust enrichment and for the imposition of a constructive trust, the defendant Planned System Integration, Ltd., appeals, as limited by its brief, from (1) so much of an order of the Supreme Court, Queens County (Schulman, J.), dated April 19, 2005, as granted that branch of the plaintiffs' motion which was to vacate a demand for a verified statement pursuant to Lien Law § 76(5) relating to the installation of certain modular workstations, and (2) so much of an order of the same court dated August 22, 2005, as denied that branch of its motion which was for leave to amend its answer to assert a fifth counterclaim to impose a trust pursuant to Lien Law article 3-A.

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.

Lien Law article 3-A creates a statutory trust for funds received by owners, contractors, or subcontractors “in connection with an improvement of real property in this state” (Lien Law § 70[1] ).   The trust's aim is to ensure that “certain parties involved in [such improvement] ․ will be properly compensated for their services” (Sabol & Rice v. Poughkeepsie Galleria Co., 175 A.D.2d 555, 556, 572 N.Y.S.2d 811).   The installation of modular workstations provided by the appellant does not qualify as an “improvement” within the meaning of Lien Law § 2(4) and § 70(1).   The appellant did not demolish, erect, or alter any structure, nor did it perform work or furnish materials for its permanent improvement (see Lien Law § 2 [4] ).   Accordingly, the Supreme Court properly granted that branch of the plaintiffs' motion which was to vacate the appellant's demand for a verified statement pursuant to Lien Law § 76(5) relating to the installation of certain modular workstations.

The Supreme Court correctly denied that branch of the appellant's motion which was for leave to amend its answer to assert a fifth counterclaim to impose a trust pursuant to Lien Law article 3-A.   Leave to amend a pleading should be freely granted where the proposed amendment is not palpably insufficient or patently devoid of merit and will not prejudice or surprise the opposing party (see CPLR 3025[b];  Bolanowski v. Trustees of Columbia Univ. in City of New York, 21 A.D.3d 340, 341, 800 N.Y.S.2d 560;  Crespo v. Pucciarelli, 21 A.D.3d 1048, 1049, 803 N.Y.S.2d 586).   As the Supreme Court properly determined that the Lien Law was not applicable, the proposed amendment was patently devoid of merit.

The appellant's remaining contention is without merit.

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