The legal standards to be applied in evaluating a motion to dismiss are well-settled. In determining whether a complaint is sufficient to withstand a motion to dismiss pursuant to CPLR 3211(a)(7), the sole criterion is whether the pleading states a cause of action. If from the four corners of the complaint factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, a motion to dismiss will fail. The court's function is to '"accept each and every allegation forwarded by the plaintiff without expressing any opinion as to the plaintiff's ability ultimately to establish the truth of these averments before the trier of the facts'". The pleading is to be liberally construed and the pleader afforded the benefit of every possible favorable inference.
Where, as here, the plaintiff submits evidentiary material, the Court is required to determine whether the proponent of the pleading has a cause of action, not whether he or she has stated one. Affidavits may be used to preserve in artfully pleaded, but potentially meritorious claims; however, absent conversion of the motion to a motion for summary judgment, affidavits are not to be examined in order to determine whether there is evidentiary support for the pleading. Injury Affidavits may be properly considered where they conclusively establish that the plaintiff has no cause of action.
To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim. To qualify as "documentary", the evidence relied upon must be unambiguous and undeniable, such as judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, and contracts. Letters, affidavits, notes, and deposition transcripts are generally not documentary.
If the documentary evidence disproves an essential allegation of the complaint, dismissal is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of personal injury action.
The essence of defendant’s argument is that the liens filed by Plaintiffs were a nullity because this was not a public improvement project and the liens filed were not filed in accordance with the private improvement provisions of the Lien Law because, inter alia, they were not timely filed and were not filed with the County Clerk. In opposition, Plaintiffs concede that the liens were not filed in accordance with the Lien Law's requirements concerning private liens but because this was a public improvement project, Plaintiffs only had to comply with the provisions governing public improvement liens.
The provisions of the Lien Law governing the filing of public improvement liens are Sections 5 and 12. Lien Law § 5 ("Liens under contracts for public improvements") provides: A person performing labor for or furnishing materials to a contractor, his or her subcontractor or legal representative, for the construction or demolition of a public improvement pursuant to a contract by such contractor with the state or a public corporation shall have a lien for the principal and interest of the value or agreed price of such labor, including benefits and wage supplements due or payable for the benefit of any person performing labor, or materials upon the moneys of the state or of such corporation applicable to the construction or demolition of such improvement, to the extent of the amount due or to become due on such contract upon filing a notice of lien as prescribed in this article, except as hereinafter in this article provided.
A public corporation is defined under Lien Law § 2(6) as "a municipal corporation or a district corporation or a public benefit corporation and a public improvement is defined under Lien Law §2(7) as "an improvement of any real property belonging to the state or a public corporation
Lien Law § 12 ("Notice of lien on account of public improvements") provides: At any time before the construction or demolition of a public improvement is completed and accepted by the state or by the public corporation, and within thirty days after such completion and acceptance, a person performing work for or furnishing materials to a contractor, his subcontractor, assignee or legal representative, may file a notice of lien with the head of the department or bureau having charge of such construction or demolition and with the comptroller of the state or with the financial officer of the public corporation, or other officer or person charged with the custody and disbursements of the state or corporate funds applicable to the contract under which the claim is made. The notice shall state the name and residence of the lienor, the name of the contractor or subcontractor for whom the labor was performed or materials furnished, the amount claimed to be due or to become due, the date when due, a description of the public improvement upon which the labor was performed and materials expended, the kind of labor performed and materials furnished, and materials actually manufactured for but not delivered to such public improvement, and give a general description of the contract pursuant to which such public improvement was constructed or demolished. If the lienor is a partnership or a corporation, the notice shall state the business address of such partnership or a corporation, its principal place of business within the state. If the name of the contractor or subcontractor is not known to the lienor, it may be so stated in the notice, and a failure to state correctly the name of the contractor or subcontractor shall not affect the validity of the lien. The notice must be verified by the lienor or his agent, to the effect that the statements therein contained are true to his own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true.
In accordance with Lien Law § 5 "in order that one furnishing labor or materials upon public work shall have a valid lien therefor, the labor and materials must have been furnished pursuant to a contract 'with the state or a municipal corporation'". Here, giving Plaintiffs' Amended Complaint the liberal reading to which it is entitled in the context of a motion to dismiss, the predicate for Plaintiffs' claims is that their liens are public improvement liens. The Court has no difficulty in concluding that defendant is not the state and is not a public corporation. However, the matter does not end there.
Certainly, if accident defendant did not contract with either the state or a public corporation to perform the work in question, the liens could not have been filed in accordance with the public improvement lien provisions and no private lien may be placed on a public road. As explained by the Appellate Division, First Department, "City-owned properties are inalienable under City Charter § 383 an entity desiring to secure an interest thereupon must file a 'public improvement lien' not a 'mechanic's lien,' which EMC filed here. A public improvement lien does not attach to the City's property; instead it secures a creditor's interest 'upon the moneys of the state or of such public corporation applicable to the construction or demolition of such improvements"'.
This being said, the Court concludes that lien, even if assumed to have validly attached as a public improvement lien, is nevertheless invalid for a different reason. The governing statute permits the assertion of a lien on account of public improvements by a person "performing work or furnishing materials". This terminology refers to the performance of physical work or labor and the furnishing of physical materials. The provision of a surety bond is not directly connected to the improvement itself and a surety has ample other means at hand, before issuing a bond, to protect itself from the risk that its insured will fail to pay a premium.
Accordingly, the court held that the motion of defendant to dismiss the Amended Complaint of Plaintiffs is granted in part and denied in part; and it is further ordered that all causes of action are dismissed to the extent asserted on behalf of Plaintiff.