This action was commenced on February 25, 2005 by the filing of a Summons and Complaint in the Supreme Court of Nassau County setting forth two causes of action against the Defendant, Tom Reed a/k/a Thomas J. Reid d/b/a Thomas Reed, (hereinafter referred to as "Reid") sounding in breach of contract and an account stated, and a third cause of action against all Defendants seeking to foreclose a mechanics lien filed by the Plaintiff on real property known as 11 Second Street, Glenwood Landing, New York. The Plaintiff filed a Notice of Pendency with the Nassau County Clerk at the same time. Issue was joined with the Defendants, Thomas Lucchese and Cynthia Lucchese, (hereinafter referred to as "the Lucchese Defendants") on or about September 26, 2005. None of the other Defendants have appeared or answered herein; and, the Plaintiff advises that a money judgment has been submitted to the Clerk of the Court as to the Defendant, Reid. The Plaintiff originally moved for summary judgment on its third cause of action in the Supreme Court of Nassau County. The Lucchese Defendants opposed the motion. Following submission of the motion this matter was transferred to the District Court of Nassau County, pursuant to CPLR § 325(d), by order of Hon. F. Dana Winslow dated December 31, 2006. The papers previously submitted, both for and against the Plaintiff's motion, have now been submitted to this court. [*2]

Summary judgment is a drastic remedy, Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 (1957), which should not be granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 413 NYS2d 141 (1978) To prevail, the movants must first make a showing of entitlement to judgment, as a matter of law, Bank of New York v. Granat, 197 AD2d 653, 602 NYS2d 942 (2nd Dept. 1993), tendering evidentiary proof in admissible form. Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065, 416 NYS2d 790 (1979). It is only thereafter incumbent upon the party opposing summary judgment to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do." Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980). The movant's failure to make such a showing, regardless of the sufficiency of opposing papers, mandates the denial of a summary judgment motion. Winegrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 (1985)

The Plaintiff alleges that the Lucchese Defendants, are the owners of certain real property, improved by a single family home, known as 11 Second Street, Glenwood Landing, New York. The Plaintiff further alleges that it supplied materials to the Defendant, Reid, who had been hired by the Lucchese Defendants, to do work on their house. The Plaintiff claims that the materials provided to the Reid had a value of $19,858.06, for which the Plaintiff has not been paid.

It is alleged that on October 10, 2003, within four months of the last materials being supplied to Reid, the Plaintiff filed a Notice Under Mechanic's Lien Law with the Nassau County Clerk regarding the outstanding balance of $19,858.06. The Plaintiff further alleges that it served this mechanic's lien upon the Lucchese Defendants, by regular and certified mail, on October 10, 2003.

The Lucchese Defendants, oppose the motion, based upon the affidavit of Defendant, Thomas Lucchese. Mr. Lucchese acknowledges that he and Mrs. Lucchese are the owners of the subject property, but claims that he never had an agreement with the Plaintiff to furnish materials for the work being performed on his home. Mr. Lucchese further alleges that he has no knowledge of the materials allegedly furnished by the Plaintiff and questions whether these materials were ever actually used on his home, pointing out the Plaintiff's failure to offer any such proof.

It is undisputed that the Plaintiff filed a Notice of Mechanic's Lien in the form required by Lien Law § 9. It is likewise undisputed that the Plaintiff served a copy of this notice in the time and manner prescribed by Lien Law § 11. It is not, however, altogether clear that the Plaintiff timely filed its notice of lien, "at any time during ... the furnishing of materials, or, within four months after ... the final furnishing of materials, dating from the last ... materials furnished ..." as required by Lien Law § 10; and, more importantly, the Plaintiff's proof demonstrates that the lien was no longer viable at the time this action was commenced.

While the Plaintiff's Notice Under Mechanic's Lien Law states that the last item of material was furnished on June 15, 2003, the Plaintiff has not submitted any proof to that effect. Having improperly submitted the alleged invoices and/or delivery tickets relating to the subject material only as part of its reply, denying the Defendant the opportunity to comment on same, these documents are not to be considered by the court. Wright v. Cetek Technologies, Inc. , 289 AD2d 569, 735 NYS2d 804 (2nd Dept. 2001); Voytek Technology, Inc. v. Rapid Access [*3]Consulting, Inc., 279 AD2d 470, 719 NYS2d 112 (2nd Dept. 2001); Rengifo v. City of New York, 7 AD3d 773, 776 NYS2d 865 (2nd Dept. 2004) Additionally, these documents are not submitted in admissible form. Simply annexing documents to the moving papers, without a proper evidentiary foundation is inadequate. Higen Associates v. Serge Elevator Co., Inc., 190 AD2d 712, 593 NYS2d 319 (2nd Dept. 1993); Palisades Collection, LLC v. Gonzalez, 10 Misc 3d 1058(A), 809 NYS2d 482 (Civ. Ct. NY Co. 2005). Being offered for the truth of the information contained therein, these documents are hearsay, Spensieri v. Lasky, 94 NY2d 231, 701 NYS2d 689 (1999); Nucci v. Proper, 95 NY2d 597, 721 NYS2d 593 (2001); Stern v. Waldbaum, Inc., 234 AD2d 534, 651 NYS2d 187 (2nd Dept. 1996); Winant v. Carras, 208 AD2d 618, 617 NYS2d 487 (2nd Dept. 1994) lv. den. 85 NY2d 812, 631 NYS2d 288 (1995) and, all other things being equal, may only be considered if they fall within one of the recognized exceptions to the hearsay rule. People v. Nieves, 67 NY2d 125, 501 NYS2d 1 (1986); Tyrell v. Wal-Mart Stores Inc., 97 NY.2d 650, 737 NYS2d 43 (2001); Alvarez v. First National Supermarkets, Inc., 11 AD3d 572, 783 NYS2d 62 (2nd Dept. 2004) The Plaintiff, however, has made no effort to lay any sort of evidentiary foundation for the admission and consideration of these documents. Nevertheless, the court cannot help but notice that, except for one invoice which shows a delivery date of May 1, 2003, none of the other documents indicate when the last item of material was delivered. At the very least, even if these documents were to be considered by the court, they raise questions of fact regarding the timely filing and validity of the Plaintiff's lien, requiring the denial of the Plaintiff's motion.

The above notwithstanding, even more problematic for the Plaintiff is the fact that the Plaintiff's own proof demonstrates that its mechanic's lien terminated by operation of law prior to the commencement of this action.

Lien Law § 17 provides, in pertinent part,

No lien specified in this article shall be a lien for a longer period than one year after the notice of lien has been filed, unless within that time an action is commenced to foreclose the lien, and a notice of the pendency of such action, whether in a court of record or in a court not of record, is filed with the county clerk of the county in which the notice of lien is filed, ... A lien on real property improved or to be improved with a single family dwelling may only be extended by an order of a court of record, or a judge or justice thereof. ... If a lienor is made a party defendant in an action to enforce another lien, and the plaintiff or such defendant has filed a notice of the pendency of the action within the time prescribed in this section, the lien of such defendant is thereby continued. Such action shall be deemed an action to enforce the lien of such defendant lienor.

Lien Law § 19 similarly provides, in pertinent part:

(2) By failure to begin an action to foreclose such lien or to secure an order continuing it, within one year from the time of filing the notice of lien, unless an action be begun within the same period to foreclose a mortgage or another mechanic's lien upon the same property or any part thereof and a notice of pendency of such action is filed according to law, ....

As previously indicated, the Plaintiff filed its Notice Under Mechanic's Lien Law with the Nassau County Clerk on October 13, 2003. The Plaintiff commenced this action and filed a [*4]Notice of Pendency on February 25, 2005, more than sixteen months thereafter. By the admission of the Plaintiff's Vice President, "plaintiff has not been made a party or defendant in any action brought for the foreclosure of any other lien or foreclosure against the aforementioned real property, or any part thereof." (Bieselin Affidavit 5/18/06, p. 3)

The Plaintiff having failed to commence an action to foreclose the lien and file a notice of pendency within one year of filing the lien, obtain an order extending the lien or be named as a defendant in an action to foreclose another lien, the Plaintiff's lien lapsed as a matter of law one year after its filing, Malafsky v. Becker, 255 A.D. 444, 7 NYS2d 825 (1st Dept. 1938) app. dism. 280 NY 685 (1939); Matter of Flintlock Realty & Construction Corp., 188 AD2d 532, 591 NYS2d 439(2nd Dept.,1992), and may not be enforced. Sunny Construction, Inc. v. Revella, 131 AD2d 560, 516 NYS2d 486 (2nd Dept.1987); 240-35 Associates v. Major Builders Corp., 234 AD2d 234, 651 NYS2d 49 (1st Dept.1996) The Plaintiff's mechanic's lien having expired by operation of law, the Lucchese Defendants, may nevertheless be found liable to the Plaintiff only if it is demonstrated that they either agreed to pay for the materials provided by the Plaintiff or guaranteed Reid's performance to pay for the materials. Podolsky v. Citation Abstract, Inc., 279 AD2d 559, 719 NYS2d 694 (2nd Dept. 2001); M. Paladino, Inc. v. J. Lucchese & Son Contracting Corp., 247 AD2d 515, 669 NYS2d 318 (2nd Dept.1998) The mere fact that the Lucchese Defendants consented to the improvements performed by Reid does not render them liable to the Plaintiff, whose sole remedy lies against Reid. Contelmo's Sand & Gravel, Inc. v. J & J Milano, Inc., 96 AD2d 1090, 467 NYS2d 55 (2nd Dept.1983); Blake Elec. Contracting Co., Inc. v. Paschall, 222 AD2d 264, 635 NYS2d 205 (1st Dept.1995); Metropolitan Electric Manufacturing Company v. Herbert Construction Co., Inc., 183 AD2d 758, 583 NYS2d 497 (2nd Dept.1992) The Plaintiff's Complaint only states a cause of action against the Lucchese Defendants, seeking to foreclose the mechanic's lien. The Plaintiff neither alleges, nor sets forth any evidence, that the Lucchese Defendants had any contractual relationship with the Plaintiff, ever agreed to provide payment for the materials furnished by the Plaintiff or guaranteed Reid's performance to pay for the materials.

Based upon all of the foregoing, the Plaintiff's motion for summary judgment is denied.

CPLR § 3212(b) permits the court to search the record and grant summary judgment to the Defendant, where warranted, even though such relief was not requested. Glass v. Wiener, 92 AD2d 584, 459 NYS2d 471(2nd Dept.1983); Triple M. Roofing Corp. v. Farmingdale Union Free School District, 26 AD3d 323, 809 NYS2d 159 (2nd Dept. 2006); Federal National Mortgage Association v. Katz, 33 AD3d 755, 822 NYS2d 759 (2nd Dept. 2006) Given the fact that the action is predicated upon the validity, or invalidity, of the Plaintiff's lien, and the Plaintiff's own proof having demonstrated that the Plaintiff's lien had lapsed prior to the commencement of this action, there is no surprise or prejudice to the Plaintiff. cf. Contelmo's Sand & Gravel, Inc. v. J & J Milano, Inc., supra .; Millbrook Hunt, Inc. v. Smith, 249 AD2d 283, 670 NYS2d 905 (2nd Dept.1998); Igbara Realty Corp. v. New York Property Insurance Underwriting Association; 104 AD2d 258, 482 NYS2d 741 (1st Dept.1984)

Given the facts presented by the Plaintiff, it is apparent that there is no basis upon which the Plaintiff may ultimately prevail against the Lucchese Defendants, warranting the granting of summary judgment in their favor and dismissing the Complaint as to these Defendants. Sunny Construction, Inc. v. Revella, supra .; and, it is hereby [*5]

ORDERED, that the Complaint is dismissed as to the Lucchese Defendants and the Plaintiff's mechanic's lien and Notice of Pendency are vacated.

This constitutes the decision and order of this court.

Dated: Hempstead, New York

October 10, 2007

___________________________

ANDREW M. ENGEL

J.D.C.