Motion to Dismiss in Marjam Supply Company, Inc., v. Warwick Properties, Inc.,, Rocker Ii Drywall Services, Llc,, Xyz Corporation 1-10, John Does 1-10 (Mortgage and Lien holders),| Trellis.Law

On October 31, 2017 a Motion-Secondary was filed involving a dispute between Marjam Supply Company, Inc.,, and John Does 1-10, Rocker Ii Drywall Services, Llc,, Warwick Properties, Inc.,, Xyz Corporation 1-10, for Other Real Property - Foreclosure on Mechanic's Lien in the District Court of Orange County.

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FILED: ORANGE COUNTY CLERK 05/08/2019 05:03 PM INDEX NO. EF008892-2017
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 05/08/2019

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
---------------------- ------------------X
MARJAM SUPPLY CO., INC., Index No. EF008892-2017

Plaintiff, AFFIRMATION IN
OPPOSITION TO
PLAINTIFF'S CROSS
MOTION AND REPLY
AFFIRMATION IN
FURTHER SUPPORT OF
- against - MOTION TO DISMISS

WARWICK PROPERTIES, INC., ROCKER II
DRYWALL SERVICES, LLC, XYZ CORPORATION
1-10 and/or JOHN DOES 1-10 (Mortgage and Lien

Holders),

Defendants.
----------------- ---------------X

STEPHANIE TUNIC an attorney duly admitted to practice law in the Courts of the State

of New York affirms that the following statements are true under the penalties of perjury:

1. I am an associate with the law firm of Blustein, Shapiro, Rich & Barone, LLP, attorneys

for the Defendant Warwick Properties, Inc. ("Warwick"), and as such I am fully and personally

familiar with all the facts and circumstances hereinafter set forth except where such information is

alleged to be upon information and belief, upon evidence and exhibits submitted, or based upon

my client's Affidavit.

2. I make this Affirmation in opposition to Plaintiff, Marjam Supply Co., Inc.'s

("Marjam") cross-motion for an Order deeming the affidavit of service to Warwick timely filed

nunc pro tune. This affirmation is also submitted in reply to Marjam's opposition to Warwick's

motion to dismiss and in further support of Defendant Warwick's pre-answer motion to dismiss

the complaint in this action pursuant to CPLR Sections 3211 and 306-b, and to vacate the Notice

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of filed in the instant action and in the previous action under Index Number EF000651-
Pendency

2017 in Orange County Supreme Court before Judge Sciortino.

WARWICK WOULD BE PREJUDICED BY AN ORDER DECLARING THE
DEFICIENT AFFIDAVIT OF SERVICE TIMELY FILED AND PLAINTIFF
MARJAM'S ALLEGATION OF LAW OFFICE NEGLECT CANNOT ESTABLISH THE
REQUISTE GOOD CAUSF, TO GRANT THEM AN EXTENSION
OF TIME OR TO EXCUSE THEIR NEGLECT

3. Marjam admits that an Affidavit of Service for Warwick was not filed until the current

motion practice was instituted, some 547 days after this action was commenced. There are no facts

presented in Marjam's opposition papers that excuse their failure to comply with the CPLR and

Warwick would be severely prejudiced because circumstances here confirm that Marjam

abandoned the subject mechanic's lien.

4. Marjam's counsel claims that Warwick would not be prejudiced because "it had no

claim."
reason to believe that Marjam abandoned the (Atty. Cohen Aff. ¶ 11) This is demonstrably

false. As stated in the original motion papers, Warwick would be prejudiced since the

circumstances in this case gave itevery reason to believe that the claim was abandoned.

5. This office notified Plaintiff in writing on several occasions that the lien at issue was

paid. In fact, we even furnished copies of the actual checks prior to this action being filed. When

our client did not receive a notice of lien renewal on or before February 1, 2018 and no notice of

a foreclosure action was ever properly served (as stated in the Affidavit of Paul Gratzel, which was

filed with the underlying moving papers), itis reasonable to conclude that the lien was abandoned

- since the obligation was paid.
especially already

6. Moreover, Marjam's opposition claims that this office was notified of their position

regarding payment, yet they also admit that Plaintiff's counsel was on maternity leave and never

responded to our letter.

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7. Plaintiff's counsel's purported reason for not filing the proof of service is that she was

on maternity leave and apparently no one else in her office was assigned to overlook the day to

day matters of this case. This is more than mere law office failure this is neglect. Such an excuse

should not be accepted to forgive the Plaintiff's failure to file the proof of alleged service in this

case.

8. Here, Plaintiff's counsel was notified of the defect in service by letter dated August 2,

2018. Plaintiff has offered nothing legitimate to explain why her office did not correct the defect

back then other than neglect by her office while she was out on maternity leave.

9. Furthermore, Plaintiff's attorney claims that my office was notiñed of their

disagreement with our position on the lien fund. However, counsel fails to present any proof of

"overlooking"
notifying us of same and instead admits to responses to this office. Importantly,

Plaintiff has offered nothing to establish the requisite good cause to be granted an extension of

time in this case.

10. As such, this Court should dismiss this action and underlying complaint based on the

Plaintiff's failure to comply with CPLR Section 306-b.

11. In addition, the alleged proof of service that was filed unreasonably late is defective as

a matter of law. A corporation in New York State must be served in accordance with CPLR

§311(a)(1). The Affidavit of Service that was filed on 2019 - 547 days after this action
May 1,

- mail"
was com==ced states that Warwick was served via substituted "nail and service.

However, the Affidavit of Service conclusively proves that service was defective.

12. CPLR §31 sets forth three ways to serve a corporate defendant -
l(a)(1) only (1)

personal service upon an officer, director, managing or general agent, cashier or assistant cashier

or to any other agent authorized by appointment or by law to receive service; (2) pursuant to New

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York Business Corporation Law (BCL) Section 306 which provides that two copies of the process

be served personally on the New York Secretary of State or any person authorized by him at the

Office of the New York Department of State; or (3) pursuant to BCL Section 3071. See generally

Premier Staffing Services of New York, Inc. v. RDI Enterprises, Inc. d/b/a Resources Direct, 39

Misc. 3d 978, 962 NYS 2d 891 (Supreme Court, Westchester County, April 8, 2013).

mail"
13. CPLR §308, which allows for substituted "nail and service is applicable only to

defendants who are natural persons. CPLR §§311, 312-a and BCL §§306 and 307 govern service

upon corporate defendants. See, e.g., Lakeside Concrete Corp. v. Pine Hollow Bldg. Corp., 104

A.D.2d 551, 479 N.Y.S.2d 256 (2d Dep't 1984), affirmed 65 N.Y.2d 865, 493 N.Y.S.2d 309, 482

N.E.2d 1225 (deliver-and-mail and affix-and-mail methods of CPLR 308(2) & (4) not available as

substitute for personal delivery to corporate representative).

14. The Affidavit of Service filed by Marjam's counsel seems to suggest that the "nail and

mail"
service attempted against Warwick was sufficient service that may be accepted by this Court.

However, such service is defective under CPLR §31l(a)(1) and BCL §306 as a matter of law. This

fundamental procedural defect merits dismissal of this action because personal jurisdiction has not

and cannot be established over Warwick.

15. To be clear, service of process against a corporation may also be effectuated by serving

a registered agent. However, Warwick has not designated a registered agent, as shown by the

annexed Entity Information page obtained from the New York State Department of State Division

of Corporations.

16. Thirdly, even ifthis Court were to excuse Plaintiff's untimeliness, Plaintiff's Affidavit

of Service is nevertheless invalid as service was conducted with a lack of due diligence.

1 This not as it unauthorized foreigncorporations only. as shown in the
sectiondoes apply here pertainsto Warwick,
attached entitysheet, is registered
as an authorized domestic corporation.

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17. The Affidavit of Service dated February 15, 2018 proves a lack of due diligence on the

mail" mail"
part of Plaintiff's process server. "Nail and or "affix and service may be used only

where personal service under CPLR 308(1) and (2) cannot be made with due diligence. Krisilas v.

Mount Sinai Hosp., 63 A.D.3d 887 (2d Dep't 2009) [internal citations omitted]; see also 86 N.Y.

Jur. 2d Process and Papers § 73. Courts have consistently held that the due diligence requirement

must be strictly observed. Krisilas, supra.

18. Here, Plaintiff's counsel claims that "the process server attempted service on numerous

occasions, as reflected in the affidavit of service, however the front door was locked and the

access."
process server could not gain See Cohen's Affirmation at ¶ 4.

19. However, Paul Gratzel, Warwick's Chief Operating Officer, explains in his affidavit

that the outside door to 2 Court is open normal business hours (9:00 a.m. - 5:00
Liberty during

p.m., Monday through Friday), and while the inside door to 2 Liberty Court is typically locked,

there is a doorbell with an intercom system that would be operating during the aforementioned

normal business hours. See the Reply Affidavit of Gratzel at ¶¶ 2-7.

20. Surely, due diligence would require the process server to ring the doorbell and inspect

any viable way to enter the premises. See Krodel v. Amalgamated Dwellings, Inc., 139 A.D.3d 572

(2d Dep't 2016) (where process server was found to have exhibited due diligence in attempt to

effect service where server approached building, rang doorbell multiple times, and left after 5

minutes, and he attempted to serve process on two other dates). Upon information and belief, it

mail"
appears that the process server failed to exhibit the required due diligence and the "nail and

service should be declared invalid, not only for lack of diligence but also because such service is

unavailable with respect to a corporation

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21. Based on the foregoing along with the underlying moving papers and the Reply

Affidavit of Paul Gratzel annexed hereto, the proof of service submitted by Marjam should not be

accepted as timely filed as it would prejudice Warwick. In any event, the affidavit of service

conclusively establishes that the purported service of process on Warwick was not conducted with

due diligence, and, most importantly, was not effectuated as required by the CPLR or BCL.

Accordingly, there is no personal jurisdiction over defendant Warwick and this Court should

dismiss this action in itsentirety with prejudice.

THERE ARE NO FACTS SUBMITTED BY PLAINTIFF TO SUPPORT THEIR
CONCLUSORY CLAIM OF FRAUDLENT CONVEYANCE

22. Plaintiff's opposition papers claim that the property here was fraudulently transferred

and therefore Warwick cannot now claim that Plaintiff sued the incorrect entity.

23. However, there are no facts here to suggest that the property was transferred to the new

owner in order to evade mechanic's liens and Plaintiff cannot blame their oversight in suing the

wrong entity on the Defendant.

24. To prevail on such a fraudulent conveyance claim, the movant must establish three

elements: (1) that the conveyance was made without fair consideration; (2) that at the time of

transfer, the transferor was a defendant in an action for money damages or a judgment in such

action had been docketed against him; and (3) that a final judgment has been rendered against the

transferor that remains unsatisfied (see Durrant v. Kelly, 186 A.D.2d 237, 588 N.Y.S.2d 196).

25. Plaintiff does not even attempt to establish the three elements of fraudulent conveyance

and merely makes the claim as a baseless conclusory statement. The conveyance occurred

approximately one month after the mechanic's lien was filed and before this action was

commenced. Therefore, because Warwick, upon information and belief, was not a defendant in an

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action for money damages at the time of the conveyance and no fmal judgment has been rendered

against them, fraudulent conveyance cannot be established.

THE DELIVERY DATE FOR THE SUPPLIES IS IMMATERIAL AND PLAINTIFF
IGNORES THAT DEFENDANT WARWICK HAS CONCLUSIVELY ESTABLISHED
THAT NO LIEN FUND EXISTS BY SUBMITTING UNDISPUTABLE DOCUMENTARY
EVIDENCE IN THE FORM OF. INTER ALIA, CHECKS DEMONSTRATING FUL_L
PAYMENT

26. Plaintiff's counsel's affirmation repeatedly alleges that there is an issue of fact

regarding the lien fund based on the final payment date and last delivery date. This fact is

immaterial and by focusing on this meaningless date, Plaintiff ignores the documentary evidence

in the form of checks that were submitted with Warwick's underlying motion. Upon information

and belief, these checks conclusively prove that the entire amount claimed has been paid in full

and that no lien fund exists.

fact"
27. First, the alleged "issue of regarding the delivery date and payment date are

immaterial to the issue of whether a lien fund exists. As a practical matter, the delivery date for

materials does not dictate when a contract needs to be paid.

28. Indeed, as stated in the Reply Affidavit of Paul Gratzel annexed hereto, Warwick would

often pay up front in order to ftmd the contractors to purchase the necessary supplies with said

monies. See Reply Affidavit of Gratzel at ¶ 8.

29. Mr. Gratzel further explains in his annexed affidavit that once the contract price is

accepted, Warwick is bound to that price and knows that itwill be paying at least that amount for

the work to be done. See Reply Affidavit of Gratzel at ¶ 9.

30. Itis clear that the delivery date is immaterial to the amount that was due. Here, the

contract proposal provided that $143,000.00 is theamount agreed upon for Rocker's work at 7000

Nicholas Brooks Court (see a copy of the proposal as Exhibit B annexed to the Affidavit of Paul

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Gratzel dated April 5, 2019 filed with original moving papers). Indeed, the proposal provides that

the amount includes any necessary supplies. Regardless of when the supplies were purchased, the

$143,000.00 was the amount due and owing to Rocker by Warwick. Warwick paid Rocker that

amount as evidenced by the checks annexed to the original moving papers at Exhibit C to the April

5, 2019 Gratzel Affidavit.

31. Furthermore, despite Plaintiff's claim that the contract with defendant Rocker does not

qualify as documentary evidence, the very case cited by Marjam's counsel states that "[J]udicial

records, as well as documents reflecting out-of-court transactions, such as mortgages, deeds,

contracts, and any other papers, the contents of which are essentially undeniable, would qualify as

case"
documentary evidence in the proper Cives Corp. v. George A. Fuller Co., Inc., 97 A.D.3d

713 (2d Dep't 2012).

32. Clearly, the contract qualifies as documentary evidence as a matter of law and proves

that the total amount for which Warwick was responsible is $143,000.00, which amount was paid

in full. See copies of the checks at Exhibit C to April 5, 2019 Gratzel Affidavit.

33. At no time does Plaintiff challenge the authenticity of the contract. Therefore, the

Court may accept the contract proposal (Exhibit B to April 5, 2019 Gratzel Affidavit) and the lien

waiver (Exhibit D to April 5, 2019 Gratzel Affidavit) as undisputable documentary evidence that

sufficiently supports granting Warwick's motion to dismiss.

34. Assuming arguendo that this Court finds that the contract is not sufficient documentary

evidence, the checks submitted by Warwick nevertheless prove that Rocker, the contractor who

hired Plaintiff, was paid in excess of the amount claimed in this action.

35. Plaintiff attempts to confuse this Court by claiming that the last day of work is an

important factual issue. However, the last day of work in this case is irrelevant because the entire

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amount claimed has been paid and payment has been proven by sufficient documentary evidence

in the form of checks.

36. The checks in this case are unambiguous. Based on the Affidavit of Paul Gratzel, they

are also authentic and undeniable. Plaintiff never denies the authenticity of the checks in its

opposition papers. Therefore, the checks proving payment to Rocker of $143,000.00 qualify as

documentary evidence as a matter of law. See Cives, supra.

37. Plaintiff does not seek any amounts that exceed the amount which was already paid.

Therefore, it does not matter whether they delivered supplies in November or December. The

amount claimed does not exceed the $143,000.00 paid to Rocker, which as far as Warwick may

be concerned went to supplies and paying any workers and subcontractors.

38. Yet, Plaintiff repeatedly alleges that Warwick has not conclusively established that no

lien fund exists. However, at no time does Plaintiff state why the two checks furnished are

insufficient to prove fullpayment or explain why the delivery date without an increase in amounts

claimed is relevant to these proceedings.

39. Moreover, Plaintiff's counsel cites case law in her affirmation that provides

"subcontractors'
liens must be satisfied out of the funds due and owing from the owner to the

contractor,"
general quoting DiVeronica Brothers, Inc. v. Basset, 213 A.D.2d 936, 937 (3d Dep't

1995) [internal citations omitted] (holding that where general contractor's complaint against the

owner was dismissed for failure to abide by discovery orders and "without prejudice to other

parties showing an entitlement to money from [owner]", a subcontractor's action against the owner

may proceed).

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40. Plaintiff has piecemealed and therefore misplaced the true meaning of the holding in

DiVeronica. If the acting general contractor2, Rocker, had a claim against Warwick, then Plaintiff

might have had a viable claim. However, there is no claim from Rocker because Rocker was paid

in full, and from those funds Plaintiff should have been paid.

41. The DiVeronica court held that "Itihe critical issue is whether there are funds due

added]."
and owing from the owner to the general contractor femphasis In DiVeronica, the

subcontractor's claim was allowed to survive absent a claim from the general contractor because

the dismissal of the claim against the general contractor for failure to comply with the conditional

order of preclusion was irrelevant to the issue of whether payment was actually made. Conversely,

in the instant matter, there is no question of whether payment was actually made as proven by the

checks. Therefore, Marjam cannot maintain this action against Warwick and the complaint should

be dismissed in itsentirety.

42. Plaintiff disputes the end date for construction but they cannot explain and overcome

the fact that the entire amount claimed in the lien is paid for. Additionally, and most importantly,

they do not claim any additional funds are owed other than interest and attorney's fees, which they

are not entitled to for an improperly filed lien.

43. Finally, none of the ancillary issues raised by Plaintiff in an attempt to divert the Court's

attention from its own fatal procedural and jurisdictional defects are relevant because the action

was not properly commenced and proper service was never made on Warwick.

2 general an affiliate of the Builders
Technically, the contractor was MJJ Builders, company owner, Warwick. MJJ is
not a partyto thisaction. For our purposes, Rocker was acting as thegeneral contractor since ithad the direct
contract with the owner and, upon information and belief,subcontracted out saidwork to Marjam.

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WHEREFORE, itis respectfully requested that the Court issue an Order denying

Plaintiff's cross-motion, dismissing the complaint, granting judgment in favor of Defendant

Warwick, and vacating the Notices of Pendency filed herein and previously filed, that the Court

award sanctions against the Plaintiff and Plaintiff's attorney, that the Court permit further

applications for legal fees and expenses to be awarded to the Defendant, together with such other,

further and different relief as to the Court may seem just and proper

Dated: Goshen, New York

May 8, 2019

Ste anie Tunic

ustein, Shapiro, Rich & Barone, LLP

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Document Filed Date

May 08, 2019

Case Filing Date

October 31, 2017

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Motion-Secondary: Marjam Supply Company, Inc., v. Warwick Properties, Inc.,, Rocker Ii Drywall Services, Llc,, Xyz Corporation 1-10, John Does 1-10 (Mortgage and Lien holders),

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