Decision and order The defendants have moved seeking to dismiss the complaint and to discharge the mechanic’s lien filed. The plaintiff opposes the motion: Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now makes the following determination. The defendant Mega Contracting GP LLC was the general contractor for the construction of property located at 1921 Cortelyou Road in Kings County. On November 13, 2018 Mega entered into a subcontract with Agra Masonry Inc., whereby Agra would provide much of the actual construction work. Pursuant to the summary of contract terms and conditions Agra was required to “provide and secure all permits and licenses for crane operations are per NYC Dept. Buildings code requirements and NYC Dept. Transportation requirements” (see. Exhibit A of the Subcontract, General Requirements, 11). The subcontract was executed by Agra on December. 6, 2018. The plaintiff asserts that pursuant, to a contract it entered into with Agra on April 9, 2018 wherein it would supply cranes to any of Agra’s construction sites, it filed a mechanic’s lien for cranes supplied to this construction site which it claims no payments were ever made. The defendants have now moved seeking to dismiss this lawsuit and discharge the mechanic’s lien on the grounds the plaintiff’s cranes were never utilized in this construction site and they are not entitled to any payment. Conclusions of Law There is no direct and specific evidence the plaintiff supplied any crane’s to the construction site. Rather, the plaintiff asserts and alleges that it supplied cranes to Agra which then delivered them to the site. The defendants dispute that factual allegation. The defendants further argue that even if Gotham’s cranes were used at the site, Gotham is still not entitled to any lien rights since Gotham was merely a supplier of equipment to Agra, who then supplied such equipment to Mega and a supplier to a supplier is not entitled to any lien rights. There really can be no question of fact that Agra was a subcontractor at the work site. Indeed, the contract between Mega and Agra, is not only termed a subcontract agreement, but provides the scope of work necessary to be completed by Agra that comports with Lien Law §2(10). That statute provides that a subcontractor is “a person who enters into a contract with a contractor and/or with a subcontractor for the improvement, of such real property or such public improvement or with a person who has contracted with or through such contractor for the performance, of his contract or any part, thereof” (id). The agreement between Mega and Agra provides that Agra will “perform work in compliance with all contract drawings and specifications as per attached drawing log and specification table Of contents” and that Agra would “coordinate daily work with other trades so as to not cause an unsafe operation and to avoid delays” (see, Exhibit A of the Subcontract, General Requirements, 5, 7). Moreover, the scope of work delineates thirty-five specific requirements concerning masonry, seven requirements concerning the erection of steel and eight requirements regarding the erection of precast planks. It is true that one of the general requirements, as noted above, included securing permits for crane operations, however, that does not mean that Agra was not a subcontractor. Therefore, Agra was a subcontractor as a matter of law. Thus, the question that must now be addressed is whether the plaintiff, a supplier to a subcontractor, can recover from the general contractor. Pursuant to Lien Law §71 (3) (b) a contractor, as a trustee, is responsible for “claims arising at any time for payments for which the trustee is authorized to use trust funds” and includes “payment of claims of subcontractors, architects, engineers, surveyors, laborers and materialmen” (Lien Law §71 (2) (a)). Cases that have interpreted that statute have excluded claims made by suppliers to a subcontractor, or any subcontractor to a subcontractor, that had no privity with the general contractor. Thus, in Merrill Iron and Steel Inc., v. Yonkers Contracting Company Inc., 2006 WL 2679940 [S.D.N.Y. 2006] the court noted that Article 3-A of the lien Law which includes Lien Law §71 is “ambiguous as to whether a general contractor’s fiduciary duties under Article 3-A extend to second-tier contractors…who lack contractual assurances of direct payment from the general contractor” (id). The decision noted this issue of “statutory interpretation remains unsettled” (id). The court surveyed numerous cases that are in disagreement whether a subcontractor or a sub-subcontractor maintains any privity with the owner or the general contractor. Distilling those cases where liens are sought only against a general contractor reveals no dispute at all. Thus, in Avon Electrical Supplies Inc., v. C.K. Electric Inc., 297 AD2d 768, 747 NYS2d 575 [2d Dept., 2002] the court held that entities hired by a subcontractor had no lien law claims against the general contractor (or the owner) since there was no contractual relationship between those entities and the general contractor. Further, in H. Verby Company Inc., v. Plainview Associates. 6 Misc3d 1022(A), 800 NYS2d 347 [Supreme Court Nassau County 2005] the court held “there is no authority to support this contention” that a general contractor has some duty to insure that a subcontractor paid its materialmen. Merrill iron and Steel (supra) concluded that “the weight of the above-cited authority favors the view that only subcontractors with a contractual right to payment from the general contractor have standing to sue the general contractor under Article; 3-A” (id). Tutor Perini Building Corp., v. New York City Regional Center LLC, 525 F.Supp3d 482 [S.D.N.Y. 2021] adopted the: above reasoning and held that “a contractor is not liable for a subcontractor’s nonpayment of the bills of its subcontractor” (id.). It should be noted that while H. Verby. (supra) insisted the Court of Appeals in Onandaga Dry Wall Corp., v. Sylfan Glen Co., 21 NY2d 739, 287 NYS2d 88.6 [1968] already reached this result, Merrill Iron and Steel (supra) asserted that “the New York Court of Appeals has yet to address this issue” (id). In any event the weight of authority clearly concludes that the plaintiff in this case, a mere supplier of materials to the job site, has no lien law claims against the general contractor. Merely supplying cranes, if such cranes were even supplied, is an insufficient basis upon which assert lien claims against the contractor. Consequently, the motion seeking to dismiss the first cause of action is granted. Turning to the fourth cause of action for quantum meruit, it is well settled that a plaintiff may file an action for quantum meruit as an alternative to a breach of contract claim (see, Thompson v. Horowitz, 141 AD3d 642, 37 NYS3d 266 [2d Dept., 2016]). “To be entitled to recover damages under the theory of quantum meruit, a plaintiff must establish: “(1) the performance of services: in good faith, (2) the acceptance of services by the person or persons to whom they are rendered, (3) the expectation of compensation therefor, and (4) the reasonable value of the services rendered” (F and M General Contracting v. Oncel, 132 AD3d 946, 18 NYS3d 678 [2d Dept., 2015]). As noted, there is no privity between Mega and Gotham. Thus, while Gotham surely maintains claims against Agra, there can be no legitimate claims against Mega where no such relationship existed. Thus, Gotham cannot establish the elements of quantum meruit, namely that Mega accepted Gotham’s services or that there was any expectation of payment by Mega to Gotham. Therefore, the motion seeking to dismiss the fourth cause of action is granted. The fifth cause of action seeks unjust enrichment. Since Gotham has viable breach of contract claims against Agra any claims for unjust enrichment are superfluous (see, Corsello v. Verizon New York Inc., 18 NY3d 777, 944 NYS2d 732 [2012]). Therefore, the motion seeking to dismiss the fifth cause of action is granted. Thus, the first, fourth and fifth causes of action are hereby dismissed. So ordered. Dated: May 23, 2022
