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FILED: NEW YORK COUNTY CLERK 01/11/2019 11:47 AM INDEX NO. 160375/2018
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/11/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------------------------------X
SEFINA INDUSTRIES LIMITED,
Index No. 160375/2018
Plaintiff,
- against -
TISHMAN CONSTRUCTION CORPORATION
OF NEW YORK, FEDERAL INSURANCE
COMPANY, AMERICAN WOODCRAFT LLC,
SKYLINE STEEL CORP., R&S UNITED
SERVICES, INC., ART WOODWORK, INC.,
FIVE STAR ELECTRIC CORP., COMPONENT
ASSEMBLY SYSTEMS, INC., ALMAR
PLUMBING & HEATING CORP.,
Defendants.
--------------------------------------------------------------X
MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANTS'
MOTION TO DISMISS
McELROY, DEUTSCH, MULVANEY &
CARPENTER, LLP
Street-36*
225 Liberty Floor
New York, New York 10281
(212) 483-9490
Attorneys for Defendant Tishman Construction
Corporation ofNew York
Of Counsel and On Brief:
Mark A. Rosen, Esq.
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TABLEOFCONTENTS
TABLE OF AUTHORITIES..........................................................................................................ii
PRELIMINARY STATEMENT ....................................................................................................
1
STATEMENT OF FACTS.............................................................................................................
1
3
ARGUMENT..................................................................................................................................
POINT I 3
......................................................................................................................................
SEFINA AND ALMAR ALLEGE EXPRESS AGREEMENTS PRECLUDING QUASI
CONTRACT CLAIMS AGAINST TISHMAN.....................................................................
3
POINT 4
II.....................................................................................................................................
THE LIEN FORECLOSURE COUNTS OF SEFINA AND ALMAR SHOULD BE
DISMISSED BECAUSE THOSE PARTIES HAVE FAILED TO JOIN OTHER LIENORS
AS NECESSARY PARTIES PURSUANT TO THE LIEN LAW 4
........................................
CONCLUSION...............................................................................................................................
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TABLE OF AUTHORITIES
Page(s)
CASES
Anderson v. Town of Lewiston,
244 A.D.2d 965 (4th Dep't 1997)..............................................................................................4
Atrium Staffing LLC v. Iridium Development. Inc.,
57 Misc. 2d 1224 (Sup. Ct. N.Y. Co. 2017)..............................................................................3
Clark-Fitzpatrick v. LIRR,
70 N.Y.2d 382 (1987)................................................................................................................3
D.M.I. Painting. Inc. v. E. Long Island Hospital,
74 A.D.2d 838 (2d Dep't 5
1980).............................................................................................4,
Farash v. Sykes Datatronics,
59 N.Y.2d, 500, 504 (1983).......................................................................................................3
Global Funding Corp. LLC v. 133 Community Road Ltd.,
251 F. Supp. 527 (E.D.N.Y. 2017)............................................................................................4
Goldstein v. CIBL World Markets Corp.,
6 3d 295, 776 N.Y.S. 2d 12 (1st Dept. 2004)............................................................................4
Henry Quentzel Plumbing Supply. Co., Inc. v. 60 Pineapple Residence Corp.,
126 Misc.2d 751 (Sup Ct., Kings Cnty. 1984)...........................................................................5
Maneely v. City of New York,
119 A.D. 376 (1st Dep't 1907)..................................................................................................5
Parsa v. State of New York,
64 N.Y.2d 143 (1984)................................................................................................................3
STATUTES
Lien Law § 4
44..........................................................................................................................1,
2,
RULES
CPLR 3211.......................................................................................................................................1
CPLR 3211(a) (7)............................................................................................................................1
CPLR 3211(a)(10) ...........................................................................................................................5
..
11
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N.Y. C.P.L.R. § 1001(a)........................-·-...-.··.·····..····-· "......4
N.Y. C.P.L.R. § 3211(a)(10).........................-....-...·.--- ...........................4
...
111
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PRELIMINARY STATEMENT
Defendant Tishman Construction Corporation of New York ("Tishman") moves to
dismiss the second cause of action of the complaint and the second cross claim of defendant
Almar Plumbing and Heating Corp. ("Almar") pursuant to CPLR 3211(a) (7) for failure to state a
cause of action. Both of these claims are based upon unjust enrichment. Both parties have
alleged that they had written contracts with respect to the construction project at issue and a
claim for unjust enrichment does not lie where there is an express contract.
Tishman also seeks to dismiss the third cause of action of the complaint and Almar's
third cross claim based on the failure to name necessary parties pursuant to CPLR 3211(a) (10).
Both claims seek to foreclose mechanics liens and plaintiff and Almar have failed to name all
lienors on the project as parties as required by Lien Law §44.
STATEMENT OF FACTS
This matter arises out of a construction project known as 5 Riverside Square, a residential
construction tower located at One West End Avenue, New York, New York.
Tishman entered into an agreement with the owner of the project, Riverside Center Site 5
Owner LLC ("Owner") to act as construction manager for the construction of the project.
The plaintiff in this action, Sefina Industries, Limited ("Sefina"), was a subcontractor on
the project. During the course of construction of the project, certain disputes arose between the
parties and on or about September 10, 2018, Sefina filed a Notice of Mechanic's Lien against the
project claiming the amount of $3,860,635.52.
The other defendants in this action were also subcontractors on the project that have filed
notices of mechanic's lien against the project claiming monies due.
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On or about November 7, 2018, Sefina commenced the instant action asserting three
causes of action. The first cause of action asserted a claim for breach of contract against
Tishman. The second cause of action asserted a claim for unjust enrichment against Tishman.
The third cause of action sought foreclosure of itsmechanic's lien. A copy of the summons and
complaint are annexed to the accompanying Rosen Affirmation as Exhibit "1".
On or about January 3, 2019, defendant Almar filed itsanswer to the complaint. Almar
also asserted three cross claims. The firstcross claim asserted a breach of contract claim against
Tishman. The second cross claim asserted an unjust enrichment claim against Tishman. The
third cross claim sought the foreclosure of itsmechanic's lien. A copy of Almar's answer with
cross claims is annexed to the Rosen Affirmation as Exhibit "2".
With this motion, Tishman seeks dismissal of Sefina's second cause of action and
Almar's second cross claim for failure to state a cause of action and dismissal of Sefina's third
cause of action and Almar's third cross claim for failure to join necessary parties.
With respect to the claims by Sefina and Almar for unjust enrichment, itis well settled in
New York that where there is a written contract between the parties, a claim for unjust
enrichment does not lie. In the present case, both parties have expressly alleged in their
"21"
pleadings that they had written contracts with Tishman related to the project (see paragraph
"87"
of Sefina's complaint; paragraph of Almar's answer). Accordingly, they have no basis for
the assertion of a claim for unjust enrichment.
With respect to Sefina's third cause of action and Almar's third cross claim both of which
seek foreclose of mechanic's liens, Section 44 of the New York Lien Law requires that all other
parties that have filed mechanic's liens against the property must be included as necessary parties
in an action to enforce a lien. This is true even if the liens are bonded.
2
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In the present case there are at least two other parties that have filed mechanic's liens
against the project that have not been named as lienors or defendants in this action. One is
W&W Glass, LLC who filed a lien in the amount of $3,464,836.05. The other is AmtechTank
Lining & Repair LLC who filed a lien in the sum of $57,730. Copies of those liens are annexed
to the Rosen Affirmation as Exhibit "3".
ARGUMENT
POINT I
SEFINA AND ALMAR ALLEGE EXPRESS AGREEMENTS
PRECLUDING QUASI CONTRACT CLAIMS AGAINST TISHMAN
Plaintiff's Second Cause of Action and Almar's Second Cross Claim assert claims
"21"
against Tishman for unjust enrichment. In paragraph of its complaint, plaintiff specifically
"87"
alleges that ithad an express written contract with Tishman for the project. In paragraph of
itsanswer, Almar specifically alleges that ithad an express written contract with Tishman for the
project.
It is well settled in New York that, "The existence of a valid and enforceable written
contract governing a particular subject matter ordinarily precludes recovery in quasi contract for
matter."
events arising out of the same subject Clark-Fitzpatrick v. LIRR, 70 N.Y.2d 382, 388
(1987); see also Parsa v. State of New York, 64 N.Y.2d 143, 148 (1984); Farash v. Svkes
Datatronics, 59 N.Y.2d, 500, 504 (1983).
As stated by the Court in Atrium Staffing LLC v. Iridium Development, Inc., 57 Misc. 2d
1224 (Sup. Ct. N.Y. Co. 2017):
Count II,for unjust enrichment, and Count III, for quantum meruit,
must be dismissed. Relief under these causes of action exist to
compensate an aggrieved party when there is no enforceable
contract (see Parsa v. State of New York, 64 N.Y.2d 143, 148).
The existence of valid and enforceable written contract will
3
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preclude a plaintiff in a breach of contract action from recovering
in quantum meruit (see Aviv. Const. Inc. v. Antiquarium, Ltd., 259
A.D.2d 445, 446-447). Similarly, the existence of the contract
between the parties will bar an unjust enrichment cause of action
(see Goldstein v. CIBC World Mkts. Corp., 6 AD3d 295, 296).
(1"
See also Goldstein v. CIBL World Markets Corp., 6 3d 295, 776 N.Y.S. 2d 12 Dept. 2004);
Global Funding Corp. LLC v. 133 Community Road Ltd., 251 F. Supp. 527 (E.D.N.Y. 2017)
Accordingly, given the fact that both Sefina and Almar allege they had express written
contracts, their claims for unjust enrichment must be dismissed.
POINT H
THE LIEN FORECLOSURE COUNTS OF SEFINA AND ALMAR SHOULD BE
DISMISSED BECAUSE THOSE PARTIES HAVE FAILED TO JOIN OTHER
LIENORS AS NECESSARY PARTIES PURSUANT TO THE LIEN LAW
Pursuant to the CPLR, a plaintiff's lawsuit is subject to dismissal for failing to join
necessary parties. N.Y. C.P.L.R. § 3211(a)(10) (providing for dismissal of plaintiff's complaint
for failing to join necessary parties); see, e.g., Anderson v. Town of Lewiston, 244 A.D.2d 965,
(4*
965-66 Dep't 1997) (affirming trial court's dismissal of plaintiff's complaint for failure to
join necessary parties under N.Y. C.P.L.R. § 3211(a)(10)). A necessary party is one who needs
to be joined if "complete relief is to be accorded between the persons who are parties to the
action."
action or who might be inequitably affected by a judgment in the N.Y. C.P.L.R. §
1001(a).
In a lien foreclosure action, alllienors who have filed a lien on the real property or public
improvement at issue are necessary parties. N.Y. Lien Law § 44 (providing that in an action to
enforce a lien, "[a]ll lienors having liens notices of which have been filed against the same real
property or public improvement . .. are necessary parties defendant"); D.M I. Painting, Inc. v. E.
Long Island Hospital, 74 A.D.2d 838, 839 (2d Dep't 1980) (stating that "other lienors who have
4
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an interest in the property in question by virtue of their liens must be joined in action
[plaintiff's]
as parties defendant"). This is so even if a bond has been issued to discharge all the liens on the
real property or public improvement. See, e.g., Maneely v. City of New York, 119 A.D. 376, 393
(1st Dep't 1907) (ruling that in a foreclosure action, all lienors are necessary parties even if a
bond or undertaking has been given as to all lienors). The Lien Law embodies "a strong policy
in favor of having all controversies arising out of liens on the same property resolved in the same
action."
D.M I. Painting, 74 A.D.2d at 839 (citations omitted).
Accordingly, a plaintiff's failure to join lienors who have filed liens on the real property
or public improvement renders the plaintiff's lawsuit subject to dismissal. See, e.g., D.M I.
Painting, 74 A.D.2d at 839 (granting defendant's motion to dismiss for failing to join other
lienors as necessary parties unless the lienors are joined); Henry Quentzel Plumbing Supply. Co.,
Inc. v. 60 Pineapple Residence Corp., 126 Misc.2d 751, 753 (Sup Ct., Kings Cnty. 1984)
(granting motion to dismiss for failure to join other lienors unless plaintiff joined the other
lienors as necessary parties).
In the present case there are at least two other parties that have filed liens against the
property at issue that have not been joined as defendants. The lien of one of these other parties,
W&W Glass, LLC, is for the sum of $3,464,836.05, a very substantial amount.
By reason of the foregoing, plaintiff has failed to name necessary parties and itsaction
should be dismissed pursuant to CPLR 3211(a)(10).
5
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CONCLUSION
Defendant Tishman Construction Corporation of New York respectfully requests
judgment dismissing the plaintiff's second and third cause of action and Almar's second and
third cross claims.
Dated: January 10, 2019
Respectfully submitted,
/s/ 7//o4 A Ro4e.,
MARK A. ROSEN
McElroy, Deutsch, Mulvaney & Carpenter, LLP
Attorneys for Defendants
36th
225 Liberty Street, FlOOr
New York, New York 10281
(212) 483-9490
6
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FILED: NEW YORK COUNTY CLERK 01/11/2019 11:47 AM INDEX NO. 160375/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/11/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------X SEFINA INDUSTRIES LIMITED, Index No. 160375/2018 Plaintiff, - against - TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, FEDERAL INSURANCE COMPANY, AMERICAN WOODCRAFT LLC, SKYLINE STEEL CORP., R&S UNITED SERVICES, INC., ART WOODWORK, INC., FIVE STAR ELECTRIC CORP., COMPONENT ASSEMBLY SYSTEMS, INC., ALMAR PLUMBING & HEATING CORP., Defendants. --------------------------------------------------------------X MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS McELROY, DEUTSCH, MULVANEY & CARPENTER, LLP Street-36* 225 Liberty Floor New York, New York 10281 (212) 483-9490 Attorneys for Defendant Tishman Construction Corporation ofNew York Of Counsel and On Brief: Mark A. Rosen, Esq. 3735074 1.doex 1 of 10 FILED: NEW YORK COUNTY CLERK 01/11/2019 11:47 AM INDEX NO. 160375/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/11/2019 TABLEOFCONTENTS TABLE OF AUTHORITIES..........................................................................................................ii PRELIMINARY STATEMENT .................................................................................................... 1 STATEMENT OF FACTS............................................................................................................. 1 3 ARGUMENT.................................................................................................................................. POINT I 3 ...................................................................................................................................... SEFINA AND ALMAR ALLEGE EXPRESS AGREEMENTS PRECLUDING QUASI CONTRACT CLAIMS AGAINST TISHMAN..................................................................... 3 POINT 4 II..................................................................................................................................... THE LIEN FORECLOSURE COUNTS OF SEFINA AND ALMAR SHOULD BE DISMISSED BECAUSE THOSE PARTIES HAVE FAILED TO JOIN OTHER LIENORS AS NECESSARY PARTIES PURSUANT TO THE LIEN LAW 4 ........................................ CONCLUSION............................................................................................................................... 6 3735074 1.docx 2 of 10 FILED: NEW YORK COUNTY CLERK 01/11/2019 11:47 AM INDEX NO. 160375/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/11/2019 TABLE OF AUTHORITIES Page(s) CASES Anderson v. Town of Lewiston, 244 A.D.2d 965 (4th Dep't 1997)..............................................................................................4 Atrium Staffing LLC v. Iridium Development. Inc., 57 Misc. 2d 1224 (Sup. Ct. N.Y. Co. 2017)..............................................................................3 Clark-Fitzpatrick v. LIRR, 70 N.Y.2d 382 (1987)................................................................................................................3 D.M.I. Painting. Inc. v. E. Long Island Hospital, 74 A.D.2d 838 (2d Dep't 5 1980).............................................................................................4, Farash v. Sykes Datatronics, 59 N.Y.2d, 500, 504 (1983).......................................................................................................3 Global Funding Corp. LLC v. 133 Community Road Ltd., 251 F. Supp. 527 (E.D.N.Y. 2017)............................................................................................4 Goldstein v. CIBL World Markets Corp., 6 3d 295, 776 N.Y.S. 2d 12 (1st Dept. 2004)............................................................................4 Henry Quentzel Plumbing Supply. Co., Inc. v. 60 Pineapple Residence Corp., 126 Misc.2d 751 (Sup Ct., Kings Cnty. 1984)...........................................................................5 Maneely v. City of New York, 119 A.D. 376 (1st Dep't 1907)..................................................................................................5 Parsa v. State of New York, 64 N.Y.2d 143 (1984)................................................................................................................3 STATUTES Lien Law § 4 44..........................................................................................................................1, 2, RULES CPLR 3211.......................................................................................................................................1 CPLR 3211(a) (7)............................................................................................................................1 CPLR 3211(a)(10) ...........................................................................................................................5 .. 11 3735074_1.docx 3 of 10 FILED: NEW YORK COUNTY CLERK 01/11/2019 11:47 AM INDEX NO. 160375/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/11/2019 N.Y. C.P.L.R. § 1001(a)........................-·-...-.··.·····..····-· "......4 N.Y. C.P.L.R. § 3211(a)(10).........................-....-...·.--- ...........................4 ... 111 3735074_1.docx 4 of 10 FILED: NEW YORK COUNTY CLERK 01/11/2019 11:47 AM INDEX NO. 160375/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/11/2019 PRELIMINARY STATEMENT Defendant Tishman Construction Corporation of New York ("Tishman") moves to dismiss the second cause of action of the complaint and the second cross claim of defendant Almar Plumbing and Heating Corp. ("Almar") pursuant to CPLR 3211(a) (7) for failure to state a cause of action. Both of these claims are based upon unjust enrichment. Both parties have alleged that they had written contracts with respect to the construction project at issue and a claim for unjust enrichment does not lie where there is an express contract. Tishman also seeks to dismiss the third cause of action of the complaint and Almar's third cross claim based on the failure to name necessary parties pursuant to CPLR 3211(a) (10). Both claims seek to foreclose mechanics liens and plaintiff and Almar have failed to name all lienors on the project as parties as required by Lien Law §44. STATEMENT OF FACTS This matter arises out of a construction project known as 5 Riverside Square, a residential construction tower located at One West End Avenue, New York, New York. Tishman entered into an agreement with the owner of the project, Riverside Center Site 5 Owner LLC ("Owner") to act as construction manager for the construction of the project. The plaintiff in this action, Sefina Industries, Limited ("Sefina"), was a subcontractor on the project. During the course of construction of the project, certain disputes arose between the parties and on or about September 10, 2018, Sefina filed a Notice of Mechanic's Lien against the project claiming the amount of $3,860,635.52. The other defendants in this action were also subcontractors on the project that have filed notices of mechanic's lien against the project claiming monies due. 3735074_1.docx 5 of 10 FILED: NEW YORK COUNTY CLERK 01/11/2019 11:47 AM INDEX NO. 160375/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/11/2019 On or about November 7, 2018, Sefina commenced the instant action asserting three causes of action. The first cause of action asserted a claim for breach of contract against Tishman. The second cause of action asserted a claim for unjust enrichment against Tishman. The third cause of action sought foreclosure of itsmechanic's lien. A copy of the summons and complaint are annexed to the accompanying Rosen Affirmation as Exhibit "1". On or about January 3, 2019, defendant Almar filed itsanswer to the complaint. Almar also asserted three cross claims. The firstcross claim asserted a breach of contract claim against Tishman. The second cross claim asserted an unjust enrichment claim against Tishman. The third cross claim sought the foreclosure of itsmechanic's lien. A copy of Almar's answer with cross claims is annexed to the Rosen Affirmation as Exhibit "2". With this motion, Tishman seeks dismissal of Sefina's second cause of action and Almar's second cross claim for failure to state a cause of action and dismissal of Sefina's third cause of action and Almar's third cross claim for failure to join necessary parties. With respect to the claims by Sefina and Almar for unjust enrichment, itis well settled in New York that where there is a written contract between the parties, a claim for unjust enrichment does not lie. In the present case, both parties have expressly alleged in their "21" pleadings that they had written contracts with Tishman related to the project (see paragraph "87" of Sefina's complaint; paragraph of Almar's answer). Accordingly, they have no basis for the assertion of a claim for unjust enrichment. With respect to Sefina's third cause of action and Almar's third cross claim both of which seek foreclose of mechanic's liens, Section 44 of the New York Lien Law requires that all other parties that have filed mechanic's liens against the property must be included as necessary parties in an action to enforce a lien. This is true even if the liens are bonded. 2 3735074_1.docx 6 of 10 FILED: NEW YORK COUNTY CLERK 01/11/2019 11:47 AM INDEX NO. 160375/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/11/2019 In the present case there are at least two other parties that have filed mechanic's liens against the project that have not been named as lienors or defendants in this action. One is W&W Glass, LLC who filed a lien in the amount of $3,464,836.05. The other is AmtechTank Lining & Repair LLC who filed a lien in the sum of $57,730. Copies of those liens are annexed to the Rosen Affirmation as Exhibit "3". ARGUMENT POINT I SEFINA AND ALMAR ALLEGE EXPRESS AGREEMENTS PRECLUDING QUASI CONTRACT CLAIMS AGAINST TISHMAN Plaintiff's Second Cause of Action and Almar's Second Cross Claim assert claims "21" against Tishman for unjust enrichment. In paragraph of its complaint, plaintiff specifically "87" alleges that ithad an express written contract with Tishman for the project. In paragraph of itsanswer, Almar specifically alleges that ithad an express written contract with Tishman for the project. It is well settled in New York that, "The existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for matter." events arising out of the same subject Clark-Fitzpatrick v. LIRR, 70 N.Y.2d 382, 388 (1987); see also Parsa v. State of New York, 64 N.Y.2d 143, 148 (1984); Farash v. Svkes Datatronics, 59 N.Y.2d, 500, 504 (1983). As stated by the Court in Atrium Staffing LLC v. Iridium Development, Inc., 57 Misc. 2d 1224 (Sup. Ct. N.Y. Co. 2017): Count II,for unjust enrichment, and Count III, for quantum meruit, must be dismissed. Relief under these causes of action exist to compensate an aggrieved party when there is no enforceable contract (see Parsa v. State of New York, 64 N.Y.2d 143, 148). The existence of valid and enforceable written contract will 3 3735074_1.docx 7 of 10 FILED: NEW YORK COUNTY CLERK 01/11/2019 11:47 AM INDEX NO. 160375/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/11/2019 preclude a plaintiff in a breach of contract action from recovering in quantum meruit (see Aviv. Const. Inc. v. Antiquarium, Ltd., 259 A.D.2d 445, 446-447). Similarly, the existence of the contract between the parties will bar an unjust enrichment cause of action (see Goldstein v. CIBC World Mkts. Corp., 6 AD3d 295, 296). (1" See also Goldstein v. CIBL World Markets Corp., 6 3d 295, 776 N.Y.S. 2d 12 Dept. 2004); Global Funding Corp. LLC v. 133 Community Road Ltd., 251 F. Supp. 527 (E.D.N.Y. 2017) Accordingly, given the fact that both Sefina and Almar allege they had express written contracts, their claims for unjust enrichment must be dismissed. POINT H THE LIEN FORECLOSURE COUNTS OF SEFINA AND ALMAR SHOULD BE DISMISSED BECAUSE THOSE PARTIES HAVE FAILED TO JOIN OTHER LIENORS AS NECESSARY PARTIES PURSUANT TO THE LIEN LAW Pursuant to the CPLR, a plaintiff's lawsuit is subject to dismissal for failing to join necessary parties. N.Y. C.P.L.R. § 3211(a)(10) (providing for dismissal of plaintiff's complaint for failing to join necessary parties); see, e.g., Anderson v. Town of Lewiston, 244 A.D.2d 965, (4* 965-66 Dep't 1997) (affirming trial court's dismissal of plaintiff's complaint for failure to join necessary parties under N.Y. C.P.L.R. § 3211(a)(10)). A necessary party is one who needs to be joined if "complete relief is to be accorded between the persons who are parties to the action." action or who might be inequitably affected by a judgment in the N.Y. C.P.L.R. § 1001(a). In a lien foreclosure action, alllienors who have filed a lien on the real property or public improvement at issue are necessary parties. N.Y. Lien Law § 44 (providing that in an action to enforce a lien, "[a]ll lienors having liens notices of which have been filed against the same real property or public improvement . .. are necessary parties defendant"); D.M I. Painting, Inc. v. E. Long Island Hospital, 74 A.D.2d 838, 839 (2d Dep't 1980) (stating that "other lienors who have 4 3735074_1.docx 8 of 10 FILED: NEW YORK COUNTY CLERK 01/11/2019 11:47 AM INDEX NO. 160375/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/11/2019 an interest in the property in question by virtue of their liens must be joined in action [plaintiff's] as parties defendant"). This is so even if a bond has been issued to discharge all the liens on the real property or public improvement. See, e.g., Maneely v. City of New York, 119 A.D. 376, 393 (1st Dep't 1907) (ruling that in a foreclosure action, all lienors are necessary parties even if a bond or undertaking has been given as to all lienors). The Lien Law embodies "a strong policy in favor of having all controversies arising out of liens on the same property resolved in the same action." D.M I. Painting, 74 A.D.2d at 839 (citations omitted). Accordingly, a plaintiff's failure to join lienors who have filed liens on the real property or public improvement renders the plaintiff's lawsuit subject to dismissal. See, e.g., D.M I. Painting, 74 A.D.2d at 839 (granting defendant's motion to dismiss for failing to join other lienors as necessary parties unless the lienors are joined); Henry Quentzel Plumbing Supply. Co., Inc. v. 60 Pineapple Residence Corp., 126 Misc.2d 751, 753 (Sup Ct., Kings Cnty. 1984) (granting motion to dismiss for failure to join other lienors unless plaintiff joined the other lienors as necessary parties). In the present case there are at least two other parties that have filed liens against the property at issue that have not been joined as defendants. The lien of one of these other parties, W&W Glass, LLC, is for the sum of $3,464,836.05, a very substantial amount. By reason of the foregoing, plaintiff has failed to name necessary parties and itsaction should be dismissed pursuant to CPLR 3211(a)(10). 5 3735074_1.docx 9 of 10 FILED: NEW YORK COUNTY CLERK 01/11/2019 11:47 AM INDEX NO. 160375/2018 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 01/11/2019 CONCLUSION Defendant Tishman Construction Corporation of New York respectfully requests judgment dismissing the plaintiff's second and third cause of action and Almar's second and third cross claims. Dated: January 10, 2019 Respectfully submitted, /s/ 7//o4 A Ro4e., MARK A. ROSEN McElroy, Deutsch, Mulvaney & Carpenter, LLP Attorneys for Defendants 36th 225 Liberty Street, FlOOr New York, New York 10281 (212) 483-9490 6 3735074_1.docx 10 of 10