CFS Enters., Inc. v. CG & J Realty, LLC

CFS Enters., Inc. v CG & J Realty, LLC 2026 NY Slip Op 05929 October 14, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. CFS Enterprises, Inc., respondent, v CG & J Realty, LLC, appellant, et al., defendants. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on October 14, 2026 2024-13568, (Index No. 703051/23) Francesca E. Connolly, J.P. Valerie Brathwaite Nelson Barry E. Warhit James P. McCormack, JJ. Redmond Law PLLC, New York, NY (Jennifer Redmond of counsel), for appellant. Chan Vitanza LLP, New York, NY (Henry C. Chan, Virginie Brizon, George Paliogiannis, and Deema Hassan of counsel), for respondent. [*1] DECISION & ORDER In an action, inter alia, to foreclose a mechanic's lien, the defendant CG & J Realty, LLC, appeals from an order of the Supreme Court, Queens County (Cassandra A. Johnson, J.), dated October 24, 2024. The order, insofar as appealed from, denied the motion of the defendant CG & J Realty, LLC, to vacate and cancel a bond and to dismiss the cause of action to foreclose the mechanic's lien insofar as asserted against it. ORDERED that the order is affirmed insofar as appealed from, with costs. On November 7, 2022, the plaintiff filed a notice under the Lien Law, claiming that it had a lien on certain real property located in Queens (hereinafter the premises) that was owned by the defendant CG & J Realty, LLC (hereinafter the defendant). In February 2023, the plaintiff commenced this action against, among others, the defendant, asserting, inter alia, a cause of action to foreclose the mechanic's lien. In April 2023, the defendant filed a notice of discharge of public improvements lien bond and posted a bond pursuant to Lien Law § 19 to discharge the lien (hereinafter the Section 19 bond). In July 2023, Century Construction Group Corp. filed a bond pursuant to Lien Law § 37 (hereinafter the Section 37 bond) and moved to discharge "all liens and claims that may be filed against [the premises]." In an order dated October 10, 2023, the Supreme Court discharged all liens and claims against the premises, setting forth that the Section 37 bond "shall supersede all prior bonds that discharged any liens and claims" against the premises. Subsequently, by order to show cause, the defendant moved pursuant to Lien Law § 59 to vacate and cancel the Section 19 bond and to dismiss the cause of action to foreclose the mechanic's lien insofar as asserted against it. The plaintiff opposed the defendant's motion. In an order dated October 24, 2024, the Supreme Court, among other things, denied the defendant's motion. The defendant appeals. "Mechanic's liens have their derivation entirely in statutory law, existing neither in common law nor in equity" (Umbaugh Bldrs. v Parr Co. of Suffolk, 86 Misc 2d 1036, 1037 [Sup Ct, Suffolk County]). As such, "[s]trict compliance with the statutory requirements is mandated and the court does not have discretion to excuse noncompliance" (Matter of EK Mt Kisco, LLC v Arcon Constr. Group, Inc., 138 AD3d 1118, 1118-1119 [internal quotation marks omitted]; see Matter of [*2]HMB Acquisition Corp. v F & K Supply, 209 AD2d 412, 412). Lien Law § 59 provides, in pertinent part, that "[a] mechanic's lien notice of which has been filed on real property or a bond given to discharge the same may be vacated . . . by an order of a court of record. Before such order shall be granted, a notice shall be served upon the lienor, either personally or by leaving it [at] his [or her] last known place of residence, with a person of suitable age, with directions to deliver it to the lienor." Here, the defendant failed to satisfy the requirements of Lien Law § 59, as the defendant merely filed on NYSCEF the order to show cause informing the plaintiff of the defendant's intention to vacate the bond and did not personally serve it on the plaintiff or leave it with a person of suitable age and discretion at the plaintiff's last known place of residence (see Matter of Eastchester Church Inc., 44 Misc 3d 653, 654 [Sup Ct, Bronx County]). Accordingly, the Supreme Court properly denied the defendant's motion to vacate the bond and to dismiss the cause of action to foreclose the mechanic's lien insofar as asserted against it. The plaintiff seeks costs in the form of reimbursement of reasonable attorneys' fees and expenses incurred in defending this appeal pursuant to 22 NYCRR 130-1.1(c), alleging that the defendant's conduct in taking this appeal was frivolous. "A court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court . . . costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct" (U.S. Bank N.A. v Tait, 234 AD3d 889, 891 [internal quotation marks omitted]; see Curet v DeKalb Realty, LLC, 127 AD3d 914, 916). "Although the advancement of a meritless position may serve as the basis for a finding of frivolity, the standard for such a showing is high: the rule provides that a position will be deemed frivolous only where it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law" (Hossain v Hossain, 243 AD3d 894, 896 [internal quotation marks omitted]; see West Hempstead Water Dist. v Buckeye Pipeline Co., L.P., 152 AD3d 558, 558-559). "A party seeking . . . an award of an attorney's fee pursuant to 22 NYCRR 130.1.1[ ] has the burden of demonstrating that the conduct of the opposing party was frivolous within the meaning of" 22 NYCRR 130-1.1(c) (Matter of Miller v Miller, 96 AD3d 943, 944). Here, the plaintiff failed to establish that the defendant's conduct was frivolous within the meaning of 22 NYCRR 130-1.1(c) (see Zhuoya Luo v Wensheng Wang, 176 AD3d 1016, 1018). The parties' remaining contentions either are without merit or need not be reached in light of our determination. CONNOLLY, J.P., BRATHWAITE NELSON, WARHIT and MCCORMACK, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court