In an April 14, 2011 decision by Justice Demarest, the Court considered plaintiff’s motion to amend the complaint brought under the Lien Law by a subcontractor who performed plumbing work on a multi-unit condominium building in Brooklyn. Plaintiff moved to amend the complaint and to request the court to waive the numerosity requirement under CPLR 901 and allow the action to proceed as a class action. Plaintiff also sought direction as to the manner of service of the notice on the members of the proposed class. The proposed amendments relate to the value of change orders and certain agreements made during the job.
Within 8 months of completion of the work, plaintiff filed a mechanic’s lien in the amount of $307,803 against the premises. The owner sold several units. The owner used some of the funds received to pay off mortgage debt. Plaintiff alleges the money received from the sale of the units constituted “trust funds” under the lien law, and that the lender who was paid by the owner, held the money in trust under Lien Law sec. 71.
In finding that the proposed amendments were not palpably insufficient or devoid of merit, the Court permitted the amendments. Turning to the motion for class action certification, the court waived the numerosity requirement under CPLR 901, and determined that the action could be maintained as a class action. The Court also directed service in a manner set forth in CPLR 904(c).
Access Plumbing Corp. v. 1184 Brighton Dev., LLC, Sup Ct, Kings County, April 14, 2011, Demarest, J, Index No. 34488/08.