Scott E. Mollen
Scott E. Mollen ()

Mechanic’s Lien Apparently Filed to Interfere With Efforts to Sell a Home—Constructive Trust Claim Dismissed—Unlicensed Home Improvement Contractor Cannot Recover on Claims for Breach of Contract, Quantum Meruit or Unjust Enrichment—Court to Hold Hearing on Sanctions Against the Plaintiff and the Attorney

A plaintiff, by his attorney, had filed a mechanic’s lien against a residential property (house) previously owned by “A.” “A” died in January 2015. The lien stated that the plaintiff had “performed major improvements and renovations” to the house. The plaintiff alleged that he had furnished materials including, inter alia, “roofing, siding, sheetrock,…, flooring, paint,…, doors, windows, hardware, etc.,” (materials) “for a total price of $160,000.” The plaintiff sued the executor of “A’s” estate (executor). The executor moved to dismiss the action, vacate the lien and to recover damages that resulted from the executor’s “inability to sell the house.” The plaintiff had resided in the house with his girlfriend, “A’s” granddaughter and their two children. The granddaughter and one grandchild were named as co-plaintiffs.

The executor had moved in a prior action for a default judgment against the plaintiff, after the plaintiff failed to answer the executor’s complaint. The plaintiff thereafter appeared by the same attorney who had filed the lien and cross-moved to dismiss the complaint on the ground that he had never been served with process. Following a traverse hearing, the court had issued an order (in the prior action) granting the executor’s “substantively unopposed motion for a default judgment” against the plaintiff, on the executor’s claims for a judgment declaring the lien invalid and unenforceable on the ground that the plaintiff was not a “licensed home improvement contractor,” as required by Suffolk County Codes §563-3(A) and for fraud and prospective tortious interference. Following the default judgment, an inquest was held. A determination of the estate’s damages against the plaintiff as a result of the wrongfully filed lien was pending.

Thereafter, the plaintiff commenced the instant action against the executor. The plaintiff alleged an oral agreement between the plaintiff and “A,” pursuant to which “A” promised to transfer ownership of the house to her grandchildren in exchange for the plaintiff’s promise to perform renovations and repairs or to pay the plaintiff the reasonable value of “such work, labor and materials if the property was ever sold.” The plaintiff alleged that between September 2010 and January 2015, at the “insistence and request” of “A,” he provided $160,000 worth of work and materials to renovate the house. The plaintiff asserted that “A” failed to transfer title to the house to the daughter and grandchildren before she died and the executor had refused to pay the plaintiff the amount allegedly owed. The plaintiff sued the executor for quantum meruit, unjust enrichment and constructive trust and filed a notice of pendency against the house.

The court dismissed the complaint on the grounds, inter alia, of “res judicata, collateral estoppel, documentary evidence, and failure to state a cause of action.” Although the plaintiff had appeared in the prior action to contest personal jurisdiction, he had not otherwise opposed the executor’s motion for a default judgment, which the court had granted. The court explained that “[a] default judgment is generally not considered to be a determination on the merits for the purposes of res judicata or collateral estoppel as the invocation of these doctrines contemplates that the parties to the prior litigation had a ‘full and fair opportunity’ to litigate the initial determination.”

However, here, this plaintiff had “intentionally defaulted in the prior action and it cannot be said that he lacked ‘a full and fair opportunity to contest the prior determination, whether or not he availed himself of that opportunity….’” Moreover, a “defendant in default is deemed to have admitted all of the traversable allegations of the complaint and all reasonable inferences that flow therefrom.” The plaintiff had conceded that “he ‘is not a licensed home improvement contractor in Suffolk County.’”

People who perform “home improvement services without being licensed in the municipality where the services are performed” are barred from “any recovery, whether for breach of contract or under any contractual or quasi-contractual theory such as quantum meruit or unjust enrichment….” Since the complaint did not allege that the plaintiff was a licensed contractor in Suffolk County when the work was allegedly performed on the house, his claims based on quantum meruit or unjust enrichment were dismissed.

Additionally, since the complaint failed to allege “the existence of a confidential or fiduciary relationship, an essential element for a constructive trust (along with a promise, a transfer in reliance on the promise, and unjust enrichment)….,” the constructive trust claim was also dismissed. The plaintiff’s allegations that the executor is the “uncle and great-uncle, respectively, of the named co-plaintiffs…,” were deemed to be “irrelevant,” “as there is no allegation that the executor made the alleged promise(s) to [plaintiff], or that there was a confidential or fiduciary relationship between [plaintiff] and ['A'], who allegedly did make the promise(s) that plaintiff seeks to enforce herein….”

The court also held that the plaintiff was collaterally estopped from bringing the subject action, “arising out of the same alleged improvements and renovations” to “A’s” house “that underlay his filing of the… lien in the prior action as the issue of his entitlement to recover on those claims has already been conclusively determined against him.” Thus, the court dismissed the complaint in its entirety, with prejudice and vacated the notice of pendency.

The court further found that the plaintiff’s “commencement and maintenance of this action in light of the court’s determination in the prior action was ‘completely without merit in law.’” The court opined that the filing of the notice of pendency in the subject action “almost immediately after the mechanic’s lien in the prior action was vacated was ‘undertaken primarily to… harass or maliciously injure another’ by interfering with the marketing and sale of the property.” Accordingly, the court will hold a hearing to determine the amount of “fees, costs and sanctions to be assessed against plaintiff and his attorney.”

Comment: Both Steven Shore, of Ganfer & Shore, attorney for the executor, and Christopher Cassar, of the Law Offices of Christopher J. Cassar, attorney for the plaintiff, have advised that the decision is being appealed.

Miller v. Falco, Sup. Ct., Suffolk Co., Index No. 609001/16, decided Dec. 14, 2016, Baisley, J.


Landlord-Tenant—Tenant Illegally Locked Out—Treble Damages—RPAPL §853—If Owner Fails to Permit Petitioner to Re-Enter Apartment, NYC Police Department Will Assist Petitioner to Re-Enter

A petitioner commenced the subject proceeding to be restored to possession of an apartment. The petitioner testified that “while he was at the store he heard that the locks to the apartment door were being changed” and that “he sought police assistance.” The next day, when he was out of the apartment, the door locks were changed, “without the benefit of legal process.”

The petitioner alleged that he had occupied the apartment for 12 years, pursuant to an oral agreement. He had receipts for rent payments. The petitioner further testified that “he was not granted access to obtain his possessions,” since the locks were changed.

The respondent moved to dismiss, citing a transfer deed from the prior owner. The respondent’s agent testified that “she changed the locks to the apartment and to other rooms inside the apartment which she believed to be occupied by others.” The agent explained that after the deed was transferred she was hired to investigate and secure the property. She acknowledged that “after placing a sign on the building, she received calls from occupants saying that they had paid the rent.” The agent, thereafter, issued “a 30-day termination notice naming the petitioner as the tenant, three other occupants and ‘John Doe’ and ‘Jane Doe.’” The termination notice stated that “if you fail to remove your self from the apartment on or before the 30th day of November 2016, the landlord will commence a summary proceeding in the Housing Part of the Civil Court.”

A witness testified that he and his wife had moved into the subject apartment and had paid rent to the petitioner. The petitioner testified that he rented the apartment to other people “for short durations, two to three months as persons approached and asked for shelter.” The apartment had five bedrooms. While the subject case was pending, the agent granted access to “a prior occupant to remove items from the apartment.” It appeared that a prior court order which “granted limited access to petitioner for the purpose of obtaining his possessions” and which stayed the respondent from removing any contents from the premises, had been violated. A hearing will be held to resolve that issue.

The respondent argued that the motion to be restored should be denied, because the petitioner is not a tenant. There was no dispute that the locks had been changed without a court order. Moreover, the termination notice named the petitioner as the tenant. Further, “the petitioner had not surrendered possession and claimed the right to be in the apartment.” The court found that the petitioner had been “illegally locked out of the subject premises,” “without the benefit of legal process.”

The petitioner had been “identified as the tenant of the subject apartment in the termination notice” and “[a]s a tenant he could not be removed without the benefit of legal process.” The court further stated that “installations of new locks, denial of access, forcible entry and deprivation of personal property without benefit of any legal process constitutes wrongful eviction.” Additionally, “[t]he failure to make keys available to the tenant after changing the locks constitutes an illegal lockout.”

The court rejected the respondent’s argument that “petitioner could not be a tenant in occupancy for 30 days because he was renting rooms to others.” The court explained that “[r]enting rooms in a five-bedroom apartment does not mean that the owner may change the locks without the benefit of legal process.” Furthermore, the respondent’s argument contradicted “the language in the termination notice—which notice worked to scare away the occupants without the benefit of legal process. The flight of the occupants was a pretext to change the locks to the premises without the benefit of legal process.”

Finally, the court noted that “[a]n illegal lockout may be found where the petitioner was in actual or constructive possession of the premises and the respondent’s entry was either forcible or unlawful.”

The court ordered that the petitioner be restored to possession and if the respondent fails to permit the petitioner to enter the apartment, the court directed that the New York City Police Department “assist petitioner to re-enter the apartment.” The court also held that the petitioner may seek treble damages pursuant to RPAPL §853 in a plenary action.

Estrada v. Browand, 811444/16, NYLJ 1202777603444, at *1 (Civ., BX, Decided Dec. 22, 2016), Sanchez, J.