Short Form Order




                                       x         Index
FREDERICK GOLDBERG, ARCHITECT, P.C.,              Number 12596 1999
et al.
           - against -                          Motion
                                                Date August 31 1999

________________________________________x        Motion
                                                Cal. Number 58


The following papers numbered 1 to 12 read on this motion by defendants Dreamer Realty Corp. (ADreamer@) and Henry Bergmann to dismiss the complaint on the ground that it fails to state a cause of action, or in the alternative, to direct plaintiff to serve a corrected pleading and to dismiss Frederick Goldberg as a plaintiff in this action; and cross motion by plaintiffs for leave to file an amended notice of pendency and for leave to amend their mechanic's lien nunc pro tunc.



Notice of Motion - Affidavits - Exhibits ......... 1 - 4
Notice of Cross Motion - Affidavits - Exhibits ... 5 - 8
Answering Affidavits - Exhibits .................. 9 - 10
Reply Affidavits ................................. 11 - 12


Upon the foregoing papers it is ordered that the motion by defendants is denied in its entirety. The cross motion by plaintiffs for leave to file an amended notice of pendency and amended notice of mechanic's lien is granted. The proposed second amended complaint shall be served on defendants within 20 days of service of a copy of this order with notice of entry.


This action arises out of an alleged agreement between plaintiffs and defendant Dreamer in the spring of 1995, whereby plaintiffs agreed to perform architectural services at premises located at 37-01 Main Street, in Flushing. The individual plaintiff, Frederick Goldberg, is the President of plaintiff Frederick Goldberg, P.C. The premises was owned by defendant Dreamer. Defendant Bergmann is the President of Dreamer. Plaintiffs allegedly completed the work on May 14, 1997. Plaintiffs allege that defendants owe $63,492.44 for the architectural work performed.


On June 20, 1997, a notice of mechanic's lien was filed with the Queens County Clerk with respect to the premises. The notice lists the lienor as Frederick Goldberg, composed of Frederick Goldberg, Architect P.C. The notice is signed by Frederick Goldberg, individually. On June 12, 1998, Goldberg, P.C., filed a one-year extension of the mechanic's lien. Thereafter, on June 8, 1999, Goldberg, P.C. commenced this action for breach of contract and to foreclose the mechanic's lien. On July 1, 1999, a supplemental summons and amended complaint was filed with the Queens County Clerk, which added Frederick Goldberg individually as a plaintiff.


In support of the motion to dismiss, defendants contend that the amended complaint fails to allege that the lienholders have a valid architect's license, which is fatal to their first cause of action to foreclose the mechanic's lien. In addition, defendants also assert that the first cause of action is defective because the complaint fails to allege that plaintiffs= labor and material contributed to the improvement of the premises. Defendants also maintain that Frederick Goldberg, individually, was improperly joined in this action. Defendants explain that a party has one year in which to commence an action to foreclose a mechanic's lien following the extension of the lien. Defendants note that Goldberg, P.C. timely commenced the action, but Goldberg, individually, did not. Thus, defendants argue that the action must be dismissed since the mechanic's lien was signed by Goldberg, individually but he did not commence the action timely.


In opposition to the motion and in support of the cross motion, plaintiffs contend that Goldberg, individually, was properly added as a plaintiff pursuant to CPLR 1006. Plaintiffs also assert that Goldberg's foreclosure claim is timely because he and Goldberg, P.C., are united in interest and the supplemental summons and verified complaint relate back to the original summons and complaint. In addition, plaintiffs seek to amend the mechanic's lien to include the acknowledgment of Goldberg's signature on behalf of the corporation, the addition of the notarization of Goldberg's signature in his individual capacity and clarification that both plaintiffs are the lienors.


Section 3 of the Lien Law provides, in pertinent part, that a contractor, subcontractor, laborer or materialman "who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner . . . shall have a lien for the principal and interest, of the value, or the agreed price, of such labor . . . upon the real property improved or to be improved . . ." The purpose of the Lien Law is to ensure that "those who have directly expended labor and materials to improve real property at the direction of the owner or general contractor" receive payment for the work actually performed. (Canron Corp. v City of New York, 89 NY2d 147, 155 [quoting West-Fair Elec. Contrs. v Aetna Cas. & Sur. Co., 87 NY2d 148, 157].) The Lien Law is a remedial statute and is to be liberally construed to achieve this beneficial purpose. (Lien Law ' 23; Strober Bros., Inc. v Kitano Arms Corp., 224 AD2d 351, 352.)


The notice of mechanic's lien must include, inter alia, the name and residence of the lienor, and if the lienor is a corporation, the business address of such firm. (Lien Law ' 9[1].) Here, only Frederick Goldberg individually was listed as the lienor. Thus, plaintiffs seek to amend the notice of lien to reflect that both plaintiffs are lienors.


Section 12-a(2) of the Lien Law provides that A[i]n a proper case, the court may, upon five days= notice to existing lienors, mortgagees and owner, make an order amending a notice of lien upon a public or private improvement, nunc pro tunc. However, no amendment shall be granted to the prejudice of an existing lienor, mortgagee or purchaser in good faith . . .@ (See, Matter of Carboline Co. v Gold, 94 AD2d 921.) The purpose of this section is to remedy those instances where liens were defeated for technical deficiencies. (Matter of Suffolk Academy of Medicine, 151 Misc 2d 976, 977.) In the matter at hand, the amendments sought will not prejudice any party enumerated in Lien Law ' 12-a(2). The original notice of the mechanic's lien gave adequate notice that Goldberg, P.C. was a lienor. (See, Matter of Corina Assocs. v McManus, Longe, Brockwehl, Inc., 39 AD2d 613, 614.) Goldberg, P.C.'s business address was listed, and it is clear from both the notice and complaint that it was involved in the work. Thus, as no prejudice is apparent, the court will allow the notice of the mechanic's lien to be amended nunc pro tunc to assert that Goldberg, P.C. is also a lienor. In addition, no party will suffer any prejudice if the notice of pendency is amended. Indeed, a notice of pendency may be amended to correct some mistake. (Johnson v Waldo Griffiths, Inc., 144 Misc 773, 775.) Here, the amendment sought will reflect that Frederick Goldberg is a plaintiff.


The branch of the motion to strike Frederick Goldberg as a plaintiff from the action is denied. CPLR 1003 provides A[p]arties may be added at any stage of the action by leave of court . . . or once without leave of court within twenty days after service of the original summons or at any time before the period for responding to that summons expires or within twenty days after service of a pleading responding to it . . .@ (See, Dynaire Corp. v Germano, NYLJ, Aug. 1, 1996, at 22, col 1.) Here, Frederick Goldberg was added properly pursuant to CPLR 1003. Thus, the second, third, fourth and fifth causes of action, which allege breach of contract and unjust enrichment against Dreamer and Bergmann, can be asserted as they are timely pursuant to the six-year Statute of Limitations for such claims. (CPLR 213[2].)


The first cause of action, however, in which Goldberg seeks to foreclose the mechanic's lien is untimely as it was not commenced while the lien was in existence. (See, Lien Law ' 17; Shaw v Wilke, 147 App Div 513; Gately v Gately, 103 Misc 16, 18.) With its extension, the lien expired on June 12, 1999, and Goldberg's action was not commenced until July 1, 1999. Goldberg contends, though, that his action to foreclose the lien is timely since the relation back doctrine of CPLR 203(f) is applicable. Goldberg maintains that he is united in interest with Goldberg, P.C., which is wholly owned by him and, thus, defendants would not be prejudiced if he were added as a party.


Under CPLR 203(f), A[a] claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.@ Courts will generally allow the addition of a new plaintiff to an action, notwithstanding the expiration of the Statute of Limitations, where the claims of the new plaintiff and the existing plaintiff are virtually identical, where the ad damnum clause in the amended complaint is the same as in the original complaint and the newly-joined plaintiff is closely related to the original plaintiff. (Key Intl. Mfg., Inc. v Morse/Diesel, Inc., 142 AD2d 448, 459; Mark G. v Sabol, 169 Misc 2d 242, 245.) In the instant case, the claims by Goldberg and Goldberg, P.C. arise out of the same transaction and are identical. Moreover, the original pleadings should have put defendants on notice of a claim by Goldberg. (See, Nardi v Hirsh, 250 AD2d 361, 364.) Thus, Goldberg can be asserted as an additional plaintiff here.


The branch of the motion to dismiss the complaint on the ground that the cause of action to foreclose the lien has not been properly pled is denied. Defendants contend that the complaint must be dismissed because plaintiffs have failed to allege that they have a valid architect's license. Where a lienor is required to be licensed to engage in the work for which the lien is claimed, such license must be pleaded and proved as part of the plaintiff's case, and the failure to make such allegation renders the complaint defective. (76 NY Jur 2d, Mechanics' Liens, ' 254.) At bar, while the complaint fails to allege that plaintiffs are licensed, the proposed amended complaint contains the requisite allegation. Moreover, contrary to defendants= arguments, the remainder of the complaint is sufficiently pled, in light of the liberal construction which is to be afforded to pleadings. (CPLR 3026.)


Dated: November 22, 1999