MEMORANDUM AND ORDER
Appeal from that part of an order of the Supreme Court (Ferreira, J.), entered May 12, 2020 in Albany County, which (1) denied plaintiffs cross motion for partial summary judgment, and (2) granted a motion by defendant Pearl Enterprises of Illinois, LLC and John Doe to stay the action.
Defendant Pearl Enterprises of Illinois, LLC, an owner of property located in the City of Albany (hereinafter the property), entered into a contract in October 2017 with defendant Pirri Builders, LLC to serve as the general contractor for certain renovations at the property. In March 2017, Pirri subcontracted with plaintiff to provide HVAC and plumbing work on the project for $96,000. Plaintiff alleges that it performed that work, as well as $68,708.19 in additional and extra work, such that it was owed a total of $164,708.19, none of which has been paid. As a result, plaintiff filed two notices of mechanics liens against the property; the first, filed in October 2018, stated that the last day of work provided by plaintiff was April 13, 2018, and the second, filed in January 2019, stated that the last day of work was July 25, 2018. Thereafter, Pearl made two payments, not to plaintiff but to Pirri, in the total amount of $227,502.
Plaintiff then commenced this action, asserting a cause of action to enforce the mechanics lien against all defendants, and three causes of action against Pearl including, as relevant here, the eighth cause of action for “payment over mechanics lien.” In the meantime, Pirri filed a demand for arbitration against Pearl for breach of contract and seeking damages for extra work; Pearl answered the demand and asserted counterclaims. Pearl then moved to dismiss the complaint against it
1
and/or to stay the action pending the related arbitration. Plaintiff cross-moved for partial summary judgment against Pearl and for an order denying Pearls motion to dismiss. Supreme Court granted Pearls motion to dismiss plaintiffs eighth cause of action, holding that it is at best a defense to Pearls defense to plaintiffs lien foreclosure claim, and denied plaintiffs cross motion concluding, as relevant here, that summary judgment on the eighth cause of action was moot in light of the courts dismissal of it. The court also granted Pearls motion to stay the action pending the arbitration between Pearl and Pirri, a motion which plaintiff did not address in its opposition to Pearls motion. Plaintiff appeals. We affirm.
Plaintiffs evident focus on this appeal is limited to Supreme Courts dismissal of plaintiffs eighth cause of action – a supposed claim for money damages for Pearls “payment over [the] mechanics lien.” Supreme Court held, in essence, that no such claim exists, independent of the right of a subcontractor such as plaintiff to enforce its entitlement to payment pursuant to the Lien Law in a lien foreclosure proceeding. At best, the court reasoned, such a “claim” is not an affirmative cause of action, but a defense to any defense to a lien foreclosure action asserted by Pearl, which claims that it paid Pirri in full and in a timely manner before the lien attached to the property. We agree.
Plaintiffs argument that there is a cause of action for payment over a mechanics lien as applied to the facts of this case – where plaintiff contends that the payments by Pearl to Pirri were made after it received the notices of the mechanics lien – hinges upon the last sentence of Lien Law § 11, which provides that, “[u]ntil service of the notice [of lien] has been made, as above provided, an owner, without knowledge of the lien, shall be protected in any payment made in good faith to any contractor or other person claiming a lien.” In assessing the meaning and import of a statutory provision, the first step is an analysis of the statutory language itself (see Nadkos, Inc. v. Preferred Constr. Ins. Co. Risk Retention Group LLC, 34 N.Y.3d 1, 7, 108 N.Y.S.3d 375, 132 N.E.3d 568 [2019]; Hernandez v. State of New York, 173 A.D.3d 105, 111, 99 N.Y.S.3d 795 [2019]; Board of Trustees of Vil. of Groton v. Pirro, 152 A.D.3d 149, 153, 58 N.Y.S.3d 614 [2017]). Even a cursory reading of this statutory provision reveals that it was not intended to confer a right of action on any party, much less a subcontractor, plaintiff herein. It is written in the language of a defense, a defense available to the owner who pays in good faith before a mechanics lien is served. The subcontractor may be the beneficiary of such payment, or a person or entity subject to the defense, but a subcontractor is not afforded by it the ability to bring suit against an owner who abides by it; that would subvert the prophylactic purpose of the statute. Rather, a subcontractor such as plaintiff remains free to challenge – as plaintiff does here – the right of the owner, here, Pearl, to assert such a defense, while pursuing its remedies of foreclosure under other provisions of the Lien Law.
As Pearl rightly points out, this is what the subcontractor did in the two cases relied upon by plaintiff to challenge the bona fides of the owners assertion of the defense provided to it under Lien Law § 11 while attempting to foreclose on the lien (see Drane Lbr. Co. v. T.G.K. Constr. Co., 39 A.D.2d 567, 567, 331 N.Y.S.2d 678 [1972]; Drachman Structurals, Inc. v. Rivara Contr. Co., 78 Misc.2d 486, 488, 356 N.Y.S.2d 974 [Sup. Ct., Nassau County 1974]). In short, Lien Law § 11 does not confer a right of action; at best, what plaintiff is asserting is a defense against the safe harbor afforded by section 11 should an owner “do the right thing” and pay its obligations to its contractor and subcontractor before a lien attaches. Accordingly, Supreme Court properly dismissed plaintiffs eighth cause of action and denied its corresponding cross motion for partial summary judgment.
Supreme Court also properly granted Pearls motion to stay the instant action pending the arbitration between Pearl and Pirri. Initially, plaintiff failed to oppose the motion for a stay; although plaintiffs notice of cross motion generally sought a denial of Pearls motion, plaintiffs motion papers in Supreme Court did not address the stay issue. Thus, plaintiff cannot challenge that aspect of Supreme Courts order on appeal (see Matter of Dolomite Prods. Co., Inc. v. Town of Ballston, 151 A.D.3d 1328, 1330, 58 N.Y.S.3d 174 [2017]). In addition, Supreme Court properly acted within its discretion in granting the stay, as the resolution of the arbitration – which concerns a central issue of whether Pearl bears any liability to plaintiff – may well determine the outcome of the pending litigation; should Pearls allegations be sustained in the arbitration, the arbitrator would resolve the issue of its liability under the mechanics lien (see CPLR 2201; C.B. Strain & Son, Inc. v. Baranello & Sons, 90 A.D.2d 924, 925, 457 N.Y.S.2d 925 [1982]; Trieber v. Hopson, 27 A.D.2d 151, 152, 277 N.Y.S.2d 241 [1967]). We have reviewed plaintiffs remaining contentions and find them to be without merit. Accordingly, the order should be affirmed in all respects.
ORDERED that the order is affirmed, with costs.
FOOTNOTES
1
. Pearl later withdrew the motion with respect to plaintiffs fifth cause of action.
Colangelo, J.
Egan Jr., J.P., Lynch, Clark and Pritzker, JJ., concur.