SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

190 

CA 15-01346 

PRESENT: LINDLEY, J.P., DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.

 

 

ANGELO A. FERRARA, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

PEACHES CAFÉ LLC, ET AL., DEFENDANTS, 

AND COR RIDGE ROAD COMPANY, LLC, ALSO KNOWN 

AS COR HOLT ROAD COMPANY, LLC,

DEFENDANT-RESPONDENT. 

 

DAVIDSON FINK LLP, ROCHESTER (THOMAS A. FINK OF COUNSEL), FOR

PLAINTIFF-APPELLANT. 

MANNION & COPANI, SYRACUSE (GABRIELLE MARDANY HOPE OF COUNSEL), FOR

DEFENDANT-RESPONDENT AND DEFENDANT NEW YORK LIFE INSURANCE COMPANY. 

 

Appeal from an order of the Supreme Court, Monroe County (Matthew

A. Rosenbaum, J.), entered January 23, 2015. The order, insofar as

appealed from, denied plaintiff’s motion for partial summary judgment

on its first cause of action and granted that part of the motion of

defendant COR Ridge Road Company, LLC, also known as COR Holt Road

Company, LLC seeking summary judgment dismissing the first cause of

action against it.

It is hereby ORDERED that the order insofar as appealed from is

unanimously reversed on the law without costs, the motion of defendant

COR Ridge Road Company, LLC, also known as COR Holt Road Company, LLC,

is denied in part, the first cause of action is reinstated,

plaintiff’s motion is granted, and the matter is remitted to Supreme

Court, Monroe County, for further proceedings in accordance with the

following memorandum: Plaintiff appeals from an order insofar as it

denied its motion for partial summary judgment on its first cause of

action, for foreclosure on a mechanic’s lien under Lien Law § 3, and

granted that part of the motion of COR Ridge Road Company, LLC, also

known as COR Holt Road Company, LLC (defendant) for summary judgment

dismissing the first cause of action against it. According to

plaintiff, Supreme Court erred in determining that defendant did not

consent to the work its assignor performed on the subject property

within the meaning of Lien Law § 3. We agree. 

The relevant facts are not in dispute. Defendant owns commercial

property in the Town of Webster that it leased to defendant Peaches

Café LLC (Peaches), which intended to operate a restaurant on the

premises. Pursuant to the written lease, Peaches was obligated to

supply “[a]ll electrical work other than items furnished by
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CA 15-01346 

[defendant].” The lease further provided that Peaches could not

commence construction work on the property without defendant’s

consent, and that Peaches could use contractors approved only by

defendant. Finally, the lease stated that any alterations, additions,

or improvements to the premises “shall at once become a part of the

realty and belong to [defendant] and shall be surrendered with the

Premises.”

Peaches hired nonparty Quinlan Ferrara Electric, Inc. (Quinlan)

to perform the electrical work contemplated by the lease. Although

Quinlan performed the work in a satisfactory manner, Peaches was

unable to pay for it. Defendant eventually evicted Peaches for

nonpayment of rent, and Quinlan filed a mechanic’s lien against the

property pursuant to Lien Law § 3. Quinlan thereafter assigned the

lien to plaintiff, who commenced this action to foreclose on the lien. 

Defendant subsequently moved for summary judgment dismissing,

inter alia, the first cause of action, which seeks to enforce the lien

under Lien Law § 3. According to defendant, because it did not have

any direct dealings with Quinlan and did not explicitly consent to the

specific electrical work performed by Quinlan, the lien cannot be

enforced against it. Plaintiff, on the other hand, moved for partial

summary judgment on the issue of liability on the first cause of

action. The court agreed with defendant and, insofar as relevant to

this appeal, dismissed the first cause of action. 

Lien Law § 3 provides in relevant part 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.” For

purposes of this provision, a “requirement in a contract between . . .

landlord and tenant, that the . . . tenant shall make certain

improvements on the premises is a sufficient consent of the owner to

charge his property with claims which accrue in making those

improvements” (Jones v Menke, 168 NY 61, 64; see De Klyn v Gould, 165

NY 282, 287). The Court of Appeals subsequently reaffirmed Jones’s

broad interpretation of section 3 in McNulty Bros. v Offerman (221 NY

98), holding that, as long as “the liens have been confined to work

called for by the lease[,] . . . the landlords’ estate may be charged

to the same extent as if the owners of that estate had ordered the

work themselves. In substance, they have made the lessee their agent

for that purpose” (id. at 106). Jones and McNulty Bros. have not been

overturned or disavowed. 

As plaintiff correctly notes, our decision in Boyle v Paolini

Cafeteria & Rest., Inc. (220 App Div 482) is consistent with the

precedents of the Court of Appeals and is virtually indistinguishable

from the case at hand. We enforced the lien in Boyle because, even

though “latitude was allowed to the tenant to determine the character

of the alterations and improvements to be made” (id. at 485), it was

undisputed that “[t]he lease itself authorized the tenant to make the

alterations which were made” (id. at 484). Consistent with Boyle, we

more recently observed that “consent [for purposes of Lien Law § 3]

may be inferred from the terms of the lease” (J.K. Tobin Constr. Co.,
-3- 190 

CA 15-01346 

Inc. v David J. Hardy Constr. Co., Inc., 64 AD3d 1206, 1208 [internal

quotation marks omitted]). 

We acknowledge that our sister Departments have all concluded, at

various times, that a lien under Lien Law § 3 is valid only when the

property owner directly authorizes the contractor to undertake the

relevant improvements (see Paul Mock, Inc. v 118 E. 25th St. Realty

Co., 87 AD2d 756, 756, citing Sager v Renwick Park & Traffic Assn.,

172 App Div 359, 367, 368; see also Matell Contr. Co., Inc. v

Fleetwood Park Dev., LLC, 111 AD3d 681, 683; Interior Bldg. Servs.,

Inc. v Broadway, 1384 LLC, 73 AD3d 529, 529; Drapaniotis v 36-08 33rd

St. Corp., 48 AD3d 736, 737; but see Gescheidt & Co., Inc. v Bowery

Sav. Bank, 251 App Div 266, 266-267, affd 278 NY 472; Osborne v

McGowan, 1 AD2d 924, 925). In our view, however, those cases cannot

be squared with McNulty Bros. and Jones, which, of course, we must

follow. 

Here, it is undisputed that the lease between defendant and

Peaches obligated Peaches to install electrical upgrades on the

premises in order to effectuate the purpose of the lease, i.e., the

creation and operation of a restaurant. It is also undisputed that

Peaches hired Quinlan, plaintiff’s assignor, to perform the electrical

work contemplated by the lease. We therefore conclude that Lien Law 

§ 3 obligates defendant, as the owner of the benefitted property, to

pay for the “reasonable value of [Quinlan’s] services” (Scrufari v

Cowdrick, 64 AD2d 1016, 1017; see McNulty Bros., 221 NY at 105-106;

Jones, 168 NY at 64-65; Boyle, 220 App Div at 484-485). In light of

our determination, plaintiff is entitled to an inquest on damages with

respect to the first cause of action (see Scrufari, 64 AD2d at 1017).

Finally, we reject defendant’s contention that its responsibility

under Lien Law § 3 is extinguished by a provision in the lease that

purports to disclaim its liability for any mechanic’s lien incurred as

a result of work by Peaches. That provision is merely an

indemnification clause, and it has no bearing on whether defendant

consented to the improvements for purposes of section 3. Indeed, 

“ ‘once [the owner and tenant] have given their consent to an

improvement, they cannot by any arrangement among themselves cut off

the rights of lienors’ ” (Grassi & Bro. v Lovisa & Pistoresi, Inc.,

259 NY 417, 423, quoting McNulty Bros., 221 NY at 105). 

We therefore reverse the order insofar as appealed from, deny

defendant’s motion for summary judgment insofar as it sought dismissal

of the first cause of action, reinstate that cause of action, and

grant plaintiff’s motion. We remit the matter to Supreme Court for an

inquest on damages with respect to the first cause of action. 

Entered: April 29, 2016 Frances E. Cafarell

Clerk of the Court