In motion sequence 004, plaintiff Metro Woodworking Inc., /DBA/ Metropolitan Woodwork (Metro Woodworking) moves for leave to reargue and renew the defendants' motion to dismiss, sequence number 002, on the question of whether the notice of lien (the Notice) is sufficient under § 9 of the Lien Law.

The facts herein are taken from the pleadings.

This action arises out of a construction and improvements contract for a hotel and retail complex (Site 25), located at 102 North End Avenue, New York, NY.

Site 25 is the property of the Battery Park City Authority (BPCA), a public benefit corporation created under NY Pub. Auth. Law § 1973 (McKinney). A first lease pertaining to Site 25 was signed between BPC Hotel LLC and BPC Site 25 Associates, LLC. on November 18, 1998 (Defendants' Motion to Dismiss, Exhibit 7). These two entities are subsidiaries of BPCA. A sublease was signed on the same date between the BPCA and GS Site 25, the subtenant (Id. at Exhibit 8).

On March 2, 2011, the general contractor on Site 25, Hunter Roberts Construction Group [*2]LLC (Hunter Roberts), entered into a subcontract with Metro Woodworking to perform millwork on Site 25. On April 16, 2012, the contract between Hunter Roberts and Metro Woodworking was terminated.

On April 19, 2012, Metro Woodworking filed a notice of lien against the premises. The notice names GS Site 25 as the owner of the realty, and the security is taken on the real property.

An action was brought by Metro Woodworking arguing among other things a breach of contract by GS Site 25 for unpaid amounts of services rendered by Metro Woodworking.

By a decision dated July 8, 2014, this Court vacated the lien filed by Metro Woodworking, by granting the defendants' motion to dismiss. This Court found that the owner named by Metro Woodworking in the Notice was erroneous, as the premises belong to BPCA. Because BPCA is a public entity, filing a private lien against it pertaining to its real property is not permitted. Metro Woodworking should have had filed a public lien against the public improvements of the property. Therefore, the private lien filed was not valid.

Metro Woodworking is now seeking leave to reargue or renew on the specific issue of the Notice.

Under CPLR 2221 (d), leave to reargue "shall be based upon matters of fact or law allegedly overlooked by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion". The decision to grant a motion to reargue is left to the discretion of the Court (Rostant v Swersky, 79 AD3d 456, 456 [1st Dept 2010]).

Under CPLR 2221 (e), leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination" and "shall contain reasonable justification for the failure to present such facts on the prior motion". The decision to grant a motion to renew is left to the discretion of the Court (Garner v Latimer, 306 Ad2d 209, [1st Dept 2003]).

Metro Woodworking contends that the Notice that was vacated by this Court is a valid lien. Their position is that even though the Notice states that GS Site 25 has a fee simple on the real property, the error in stating the name of the real property owner to be GS Site 25 and not BPCA is not dispositive because the Notice is still in compliance with the Lien Law, which only requires information at the best of the creditor's knowledge. The interest that GS Site 25 possesses in the property is undisputed. The interest is not a fee simple, but a leasehold interest, as established by the chain of leases submitted by the parties as exhibits (Defendants' Motion to Dismiss, Exhibits 7 and 8).

As the defendants correctly argue, a mechanic's lien on a [*3]leasehold interest cannot be filed against real property owned by a public entity in fee simple (Matter of Paerdegat Boat & Racquet Club v Zarrelli, 57 NY2d 966 [1982]). Therefore, the Notice filed against the real property on Site 25 is not valid, and this Court properly vacated it on the prior motion.

In this case where the Court has found the lien at issue to be invalid, Metro Woodworking requests leave from the Court to amend or modify the existing Notice arguing that it is permitted by the Lien Law §12-a.

The Lien Law requires three different criteria to allow the Judicial Authority to modify the lien: 1) the primary notice of lien must be valid, 2) the modification must affect a mistake that is not a defect in substance, and 3) the modification must not be to the prejudice of another party (Lien Law §12-a). Even considering that the lien was properly filed by the plaintiff and substantially complied with the Lien Law requirements stated above, a modification would not be enough for the Notice of lien to be valid.

Metro Woodworking has filed its Notice with the county clerk as a lien on private real property. Allowing the modification of this lien would result in the transformation of a private lien into a public lien. Those liens are of two different kinds, filed in two different places, and differently published.

Because the real property that is targeted by the Notice is owned by a public entity, and the interest against which the lien is filed cannot be a leasehold interest on such a property, Metro Woodworking should have filed a Notice of lien against the public improvement. Metro Woodworking's services resulted in improvements upon the property belonging to BPCA, the public entity. As such, those improvements are public improvements according to the Lien Law §2(7) definition.

A mechanic's lien against a public improvement is a security held against the improvements of the property, and not against the property itself, therefore satisfying the public policy enabling the public entities to be sovereign over their properties. These types of improvements, being closely related to public interests, is to be filed with public agencies.

Metro Woodworking states in its' pleading that it substantially complied with the Lien Law since the named owner of the property in the Notice was GS Site 25 and that this is sufficient under the definition of an "owner" under Lien Law §2(3). Indeed, having a leasehold interest in the property renders a tenant an owner under the Lien Law, but this is only true as far as the subject matter of the lien is owned by a private entity. Metro Woodworking complied with the Lien Law pertaining to private improvements, not to public improvements.

In the context of filing a notice of lien against a publicly owned property, one can not deem the Notice filed by Metro [*4]Woodworking valid for the mere reason that Metro Woodworking substantially complied with the Lien Law as applied to a lien against a privately owned real property.

The first element necessary to give power to the Court to authorize the amendment of the Notice, a valid notice of lien, is not met.

Therefore, the Court grants the motion to reargue, but denies the motion to renew since no new facts were presented on this motion that were not presented on the prior one. Further, the Court denies the motion for leave to amend the Notice of lien.

Accordingly, it is:

ORDERED that the motion of plaintiff for leave to reargue defendants' motion to dismiss on the second, fourth, fifth, seventh, and eighth causes of action is granted; and it is further

ORDERED that the motion of plaintiff for leave to renew defendants' motion to dismiss on the second, fourth, fifth, seventh, and eighth causes of action is denied; and it is further

ORDERED that, upon reargument, the Court adheres to its Decision and Order, dated July 8th, 2014, granting defendants motion to dismiss in its entirety; and it is further

ORDERED that plaintiff's motion for leave to amend the notice of lien is denied.

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J.S.C.