Defendant 101 Nott Terrace, LLC ("Defendant") has moved for summary judgment dismissing the Complaint in this action. Plaintiff has opposed. This is an action to foreclose a mechanic's lien filed by Plaintiff and arising from a construction project at property owned by Defendant.

The basic standard to be applied by a court addressing a summary judgment motion is well established. The proponent of a summary judgment motion carries the initial burden to make a prima facie showing of entitlement to judgment as a matter of law by presenting sufficient evidence to eliminate any material issues of fact (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). If the requisite showing is made, the burden of proof then shifts to the responding party or parties to show the presence of questions of fact requiring trial (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). The facts must be construed in a light most favorable to the non-moving party (see e.g. Hanna v. St. Lawrence County, 34 AD3d 1146 [3d Dept 2006]).

On this motion, Defendant asserts that Plaintiff has no valid lien because it is not entitled to the final payment under the contract at issue due to its breach of that contract. Defendant points to the contract term requiring that "[a]ll posts shall be installed and set in concrete prior to new asphalt paving." In its responses to interrogatories, Plaintiff stated, "Wood guide rail posts were placed in excavated holes, aligned, then the excavated soil thoroughly compacted around the posts." Defendant thus asserts breach of a material term of the contract by Plaintiff for failing to set all posts in concrete, which precludes Plaintiff from having a valid lien (Matzen Constr., Inc. v. Schultz, 257 AD2d 724 [3d Dept 1999]).

In response, Plaintiff points to another provision in the contract providing that payment to Plaintiff of 40% of the contract amount would be made "after the posts are satisfactorily set . . [*2]. ." Once all posts had been set, Plaintiff submitted an invoice for 40% of the contract price, which Defendant paid. Indeed, it was not until after Plaintiff submitted its invoice for final payment and the parties disagreed about language in the Final Receipt and Waiver of Lien form did any dispute as to Plaintiff's performance arise. Plaintiff thus asserts that Defendant waived its claim for breach of contract by making payment on Plaintiff's first invoice. Plaintiff is correct.

As pointed out in Plaintiff's memorandum of law, a waiver is a knowing, voluntary, and intentional abandonment of a contractual right (Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgt., L.P., 7 NY3d 96 [2006]). A waiver can be established through affirmative conduct or by failure to act so as to evince an intent not to claim the purported advantage (Gen. Motors Acceptance Corp. v. Clifton-Fine Cent. School Dist., 85 NY2d 232 [1995]). Defendant here did both. The contract in this case—which was written by Defendant using an Association of General Contractors form—provides that if Plaintiff is guilty of a material breach of the contract, Defendant can give written notice to Plaintiff to commence and continue satisfactory correction of the default, or Defendant can take reasonable steps to correct the deficiencies and charge the cost to Plaintiff. Defendant claims material breach by Plaintiff for its failure to set all posts in concrete, but Defendant neither gave notice to correct nor undertook steps to correct the asserted breach. More significantly, Defendant paid Plaintiff's invoice for 40% of the contract price, which by clear contractual provision was due only after the posts were satisfactorily set.

The progression of the events at issue is telling. The purported discovery of Plaintiff's breach took place while the parties were engaged in a dispute as to terms of the Final Receipt and Waiver of Lien form and after Plaintiff had threatened to lien the job. Rather than following the contract by giving Plaintiff notice to correct the alleged breach or taking steps itself to do so, Defendant asserted a monetary claim. The amount of that claim more than tripled after this action was commenced. The Court finds it noteworthy that Defendant's claim is based on estimates. While the contract does not require Defendant to correct the alleged breach, nothing in the record indicates that any remedial work has been undertaken during the four years that have elapsed since the breach was declared. The reason for this is evident from the uncontroverted statement in the affidavit of Plaintiff's principal that setting wooden posts in concrete is actually counterproductive, as it shortens their useful life. Reviewing the record here, it is clear to the Court that Defendant's claim is tactical rather than genuine. Defendant has received the benefit of its bargain with Plaintiff. Therefore, the Court will invoke CPLR 3212(b) and grant summary judgment to Plaintiff.

The parties' remaining contentions have been considered, but do not alter the outcome of this motion. Therefore, in consideration of the foregoing, it is hereby

ORDERED, that the motion by Defendant seeking summary judgment dismissing the Complaint in this action is denied; and it is further

ORDERED, that Plaintiff is hereby awarded summary judgment establishing a valid lien in the amount of $9,165.60.

Notice of Motion Affirmation of Conor E. Brownell, Esq., with annexed exhibits; Affidavit of Jonathan Rosenblum, with annexed exhibits; Affidavit of Thomas Scott Hawkins; Memorandum of Law; Affirmation in Opposition of Paul C. Marthy, Esq., with annexed exhibits; Affidavit of Mark J. Bruce, with annexed exhibits; Affidavit of Mark M. Bruce, with annexed exhibit; Memorandum of Law in Opposition.