Halitskov v. National Land Tenure Co. LLC

2025 NY Slip Op 32479(U)

• Court: New York Supreme Court, Kings County
• Decided: July 11, 2025
• Docket: Index No. 525792/24
• Status: Unpublished

Opinion

Halitskov v National Land Tenure Co. LLC 2025 NY Slip Op 32479(U) July 11, 2025 Supreme Court, Kings County Docket Number: Index No. 525792/24 Judge: Kerry J. Ward Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 07/11/2025 04:35 PM INDEX NO. 525792/2024 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 07/11/2025

At ah IAS Tenn, Part 3, _of the Supreme Court of the State ofNew York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New Yo1'k, on thei\tt,.day of July,2025.

PRESENT:

HON. KERRY J. WARD, Justice. --- ·--------------------------------------------- •.· ------------: -------X DANITL HALITSKOV, Plaintiff,

-against- Index No. 525792/24

NATIONAL LAND TENURE COMPANY LLC; DBJPM- 20t7C6 611 DEGRAW LLC,

Defendants. - .. --------------------- .-- .----- .----------------------. -.. -.. --------X· The following e-filed papers read herein: NYSCEF Nos.:

Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affir01atio11S) Annexed _ _ _ _ _ _ _ t 7. 46, 47-49, 62-64, 19, 26. 3L34 Opposing Affidavits (Affirmations) -=5'--'-7..:. . :. . 78=•.. . ::9-"l'-._ _ __ Affidavits/ Affirmations in Reply . - - - - - - - - - - ~ Other Papers: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Upon the foregoing papers, defendant DBJP:M 2017-C6 611 Degraw LLC (DBJPM)

moves (Motion Sequence [MS] #2) for an order, (l) pursuant to CPLR 3212, granting

DBJPM sLUnmmy judgment dismissing the complaint of plaintiff Dartiil Halitskov with

prejudice;• (2) determining that the mechanic's lien ·filed by plaintiff is invalid; and (3}

discharging the bond filed by DB)PM with respect to the mechanic's lien. Plaintiff moves

(MS # 3) to amend llis complaint arid to add Intact Insurance a/k/a Adai1tic SpeciaJty

Insurance (Intact) 1 the surety which issued the bond; as a party. Plaintiff separately cross~

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moves (MS # 4) for an order (1) pursuant to CPLR 3212, granting plaintiff summary

judgmelit oi1 his coniplaint; (2) determining that the mechanic's lien filed by plaintiff is

valid; and (3) directing payment to plaintiffon the surety bond filed byDBJPM. Defendant

Natio11al Land Tenure (NLT) cross-moves (MS # 5) for an order l) pursuant to CPLR 3212,

granting summary judgment dismissing the coinplaint as to NL T or, alternatively_,

co1t1pelling discovery; and 2) pursuant to 22 NYCRR Part 13 0, imposing costs and sanctions

on plaintiff.

Plaintiff, pro se, commenced this action to recover smns allegedly owed for work he

perfotmed at the subject propetty at 611 Degraw Street in Brooklyn. The property was

formerly owned by 611 Degraw LLC (61 I LLC), which obtained title by deed dated May

23, 2008and recorded June 5, 2008. On May 18, 2017, 611 LLC encunibered the property

with a co11solidate.d mortgage in the amount of $7,000,000. On March 24, 2022, the

assignee ofthe consolidated mortgage commenced a foreclosure action against 61 l LLC. A

judgment of foreclosure was e11tered May 5, 2023, and the property was sold to DBJPM at

the foreclosure auction. A referees deed was issued to DBJPM on November 22, 2023 and

recorded on December 12, 2023. The property was thereafter sold and conveyed from

DBJPM to Essence Hotel LLC (Essence) on August 15, 2024. NLT served as the title

compai1J for the closing.

On August 12~ 2024~ shortl)' before. the conveyance to Essence, plaintiff filed a notice

of mechanic's lien against the property with the Kfogs County Clerk. In the notice, plaintiff

claimed_ the amount of $50,0()0 for unpaicl labor artd tnat¢ria1 expenditures inc:mted froni

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August 15, 2023 to Ji.me l, 2024. The notice stated that plaintiff "Supplied and Installed

Access Points, Cable; Brackets, Security Equipment, Electrical Materials, Etc.'; to 611 LLC.

The instant action ,vas commenced by the filing of a summons with notice on

September 23, 2024. In his complaint, filed on October 16, 2024, plaintiff sets forth a cause

of action against DBJPM for breach of contract_. a cause ofactiortagainst DBJPM and NLT

for "violation'' of the New York State Lien Law, a cause of action for gross negligence

against NLT(based on the title company's frtilureto include the mechanic's lic:n on the title

teport so that it could be satisfied prior to the closing to Essence), and againstDBJPM and

NLT for fraud and conspiracy to commit fraud. DBJPM and NLT interposed answers

setting forth certain affirmative defenses, including failure to state a cause of action.

DBJPM also set forth counterclaims to discharge the lien (or bond_, if thereafter procured)

and for slander of title. On Noven1ber l, 2024, DBJPM obtained a bond from Intact

discharging the lienpursuantto Lien Law§§ 19 (4) and 21 (5).

Both DBJPM and NLT move for summary judgment dismissing the complaint.

Plaintiff moves to amend the complaint to add Intact as a defendant and separately cross-

moves for an qrdet granting summary judgment on his claims and directing p~ymei1t on the

bond.

A defendant moving for sUminary judgmenthas the initial burden •of coming fotwatd

with .adrriissible evidence, such as affidavits by persons having knowledge of the foe.ts,

reciting the material f,1cts and. showing that the cause of action has no merit (GTF .Mktg. v

Coionidl Alwi1inum Saies 1 66 NY2d 965, 967 [1985]),. Once the 1noving party has made a

prima facie showing of entitlement to.smnmary judgment,. the burden shifts to the opponent

.3

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to produce evidentiary proof in admissible form sufficient to establish the existence of

rnatet'ial issues of fact which requires a trial (id; Alvarez v Prospect Hosp., 68 NY2d 320 . .

[f986]}; ''[M]ere conclusions, expressions of hope or unsubstantiated allegations ot

assertions ate insufficient" for this purpose (Zucketman v City a/New York, 49 NY2d 557,

562 [ 1980]). While the "facts must be viewed in the light most favorable to the non-moving

party" (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal quotation marks

omitted]), bald, conclusory assertions or speculation and "[aJ shadowy semblance of an

issue" are insufficient to defeat summaryjudgment (SJ Cape Un Assoc. v Globe Mfg. Corp:,

34 NY2d 33 8, 341 [ 1974 ]), as are "merely conclusory claitns'' (Stone hill Capital Mgt,, LLC . . . .

v Bank of the W, 28 NY3d 439, 448 [2016] citing Putrino v Buffalo Athletic Club, 82 NY2d

779,781 [1993]).

"Liability fot breach of contract does not lie absent proof of a Contractual

relationship or privity between the parties'' (Hamlet at Willow Cr, Dev. Co,; LLC v

Nottheast Land Dev. Corp., 64 ADJ

AD3d714, 717 [2d Dept 2014]; CDJBldrs. Corp. v Hudson Group Constr. Corp., 67 AD3cl

720, 722 [2d Dept 2009]). ''One cannot be held liable under a contract to which he or she is

not a paity" (Victory State Bank v EMBA Hylan, LLC, 169 AD3d 963, 965 [2d Dept 2019];

see Maki vTravelers Cos., Inc., 145 AD3d 1228, 1230 [3d Dept 2016}; 1911 Richmond Ave.

Assoc., LLC v G:L.G. Capitol, LLC, 90 AD3d 627, 627 [2d Dept 201 l]). The evidence

subinitted in this matter; µs well as. the allegations in. the complaint itself, establishes that

any contractual i"elationship with plaintiff regarding .the alleged wt1rkwas entered into only

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by 611 LLC, which is not a party to this action. There being no basis for plaintiff's breach

of contract claim as against DBJPM, the first cause of action is subject to dismissal.

The second cause ·of action alleged by plaintiff is that defendants are in violation of

the Lien Law, Specifically, plaintiff alleges that "[cl]efendants ignored the lien during the

sale. of the property and failed to ensure that Plaintiff's lien was satisfied or escrowed at

closing, thus violating Plaintiffs rights under New York State Lien Law." Hm:vever,

plaintiff has not cited any provision in the Lien Law requiring that a mechanic's lien

existing on a property be satisfied or escrowed upon the closing of the sale of the property.

His unclear from his pleading ·whether plaintiff is asserting a claim for foreclosure of the

mechanic's Hen. Nonetheless, such a cause of action could not be sustained as any

entitlement to a lien stemming from plaintiff's contract with 611 LLC was cut offby the

referee's deedto DBJPM.

Lien Law 13 (1) provides that a lien for materials tutnished or labor perfotmed in the

improvement of teal property ''shall have priority over a conveyai1ce, mortgage, judgment or

other claim against such property not recorded, docketed-or filed at the time of the filing of

the nolice of such lien, except as hereinafter in this chapter provided." One exception is

providedbyLien Lavv (5), which provides, in part, that

"No i1'1struinent ofco11Veyartce recorded subsequent to the c01T1mencenient of the improvenient,, and before the expiration of the period specified in section. ten of this chapter for filing of notice of lien after the completion of the iluprovement, shi:i,li be valid as against liens filed within a corresponding peric)d of tirrie 111easui·ed frplh the recotding of such cllnveya1ice, unless the instrtufrent contains a coveoa11t by the grantor that he will receive the _consideration for such conveyance and \vill hold the right to receive such consideration as a ttust fund to he applied

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first .for the purpose of paying the cost of the improvement and that he will apply the same tfrst to the payment of the cost of the itnproventent before using any part of the total (1f the sarrte for any other purpose.''

However, the above subsection 5 expressly states that '"[n]othing in this subdivision shall

apply to a deed given by a reteree o.r other person appointed by the court for the sole

purpose of selling real propetty.'; Because the referee's deed to DBJPM was recorded prior

to the filing of plaintiffs lien, the ''lien is not valid against the deed" (Leonard Eng'g v

Zephyr Petroleum Corp., 135 AD2d 795, 797 [2d Dept 1987]). To the extent plaintiff is . .

claiming a lien for ,votk done after the conveyance lo DBJPM, the relevant portion of Lien

Law§ 3 provides that a contractor or laborer shall have a lien where such person "performs

labor or furnishes materials for the improvement of real property with the consent or at the

request of the mvner thereof: or of his agent, contractor or subcontractor" (emphasis added}.

·"Consent of the owner is the sine qua non, and if no consent is shown, there is no right to a

lien" (GCDM Ironworks v GJF Co11str: Cmp., 292 AD2d 495,496 [2d Dept 2022]). "The

consent required by this section is not mere acquiescence and benefit, but some affinnative

act or course ofconduct establishing confirmation,: (id)

The affidavit of DBJPM's property manager establishes that no agreement was inade

with nor \vas consent given to plaintiff for the alleged work. I.11 fact, plaintiffs submissions

demonstrate that his agreement to perform the work was made solely with 611 LLC and/or

its owner, Alec Shtrornandel. There is nothing ther~in to. indicate that plaintiff had any

communication or other contact with OBJPM regarding the work fo1; which plaintiff filed a

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lien, and plaintiff does not otherwise submit or cite evidence sufficient to raise an issue of

fact

Turning next to the third cause of action for gross negligence, "[t]he threshold

question in any negligence action is [whether] defendant owe[s] a legally recognized duty of

care" to plaintiff (Hamilton v Beretta U.S.A. Co,p., 96 NY2d 222, 232 (2001]). The

existence of a duty ofcare is also necessary to state a cause of action to recover damages for

gross negligence (see East Meado1v DrivingSchoolv Bell At!. Yellow Pages Co., 273 AD2d

270, 271 [2d Dept 2000]). "Courts ttaditionally 'fix the duty poi11t by balancing factors,

including the reasonable expectations of parties and society generally, the proliferation of

claims, the likelihood of unlimited or insurer~like liability, disproportionate risk and

reparation allocation, and public. policies affecting the expansion or limitation of new

channels of liability"' (Hamilton, 96 NY2d at 232, quoting Palka v Servicemaster Mgt.

Seivs. Corp'., 83 NY2d 579, 586 [1994]). The court finds that the duty ofNLTto assure that

any recorded liens are revealed by its title search, while dearly owed to the person or entity

who retained NLT 1 does not extend to the actual lienors of record, whose interests are

pr-eserved ,vhether or not they are included it1 the report (cf. F & C Gen. Contrs, Co1p. v

Atlantic Mut. Mtge. Corp., 268 AD2d 556 [2d Dept 2000] [lie11holdet was e11titled to add . .

negligence cause of acti<."m to its complaint against title insurer, abstract company, and

111,ortgag\!e for their failure to satisfy rnechanip's lien filed by lienholder at closing on

refinancing of p1;operty: where defendants had nbtice of the lienholder's contentii..in that they

vv·erc neg Iigei1t ih foi Ii ng ·to .tb Ilbw· dosing instructions received fro in l ienho lder' s cou nse I]).

Add1tional1y, in oi'der to re.cover damages for an alleged title defect, actual loss must be

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demonstrated (see E,C.I. Fin. Corp. v First Am. Tit. Ins. Co. a/NY, 121 AD3d 833, 834 [2d

Dept 20141). NL T's alleged ornission of the lien from the title report did not result in any . .

''actual loss'' to plaintiff as the lien has been shown to be invalid as against DBJPM, and

plaintiffvvould not be entitled to recover thereon.

The elements of a cause of action soundihg in fraud are a material misrepresentation

of an existing fact, made with lmowledge of the falsity, an intent to induce reliance thereon,

justifiable reliance upon the misrepresentation, and damages'; (lntrona v Huntington

Learning Ctrs:, Inc., 78 AD3d 896,898 [2d Dept 2010]). Even if NIT had knowledge of the

mechanic's lien and failed to disclose the lien, there is no allegation that plaintiff justifiably

relied on this "misrepresentation" to his detriment, which resulted any loss or damages to

plaintiff. Since there is no w1derlying meritorious claim for fraud, the conspiracy claim is

likewise without foundation (see Yukolto v Suzuki, 57 AD3d 205, 207 [1st Dept2008]).

Accordingly, the fourth cause ofaction is without medt.

As a result, the motion ofDBJPM and cross niotion ofNLT are granted to the extent

that the complaint is hereby dismissed andthe bond discharged. In light of this disposition,

plaintiffs motion to amend the complaint to add Intact as a party, and plaintiffs cross

motion for an order granting summary judgment on his complaint, are both denied.

With respect to the remaining counterclaim for slander of title, the elemei1ts of a

ca.use of action to recover damages for slander of title are '''{1) a communication falsely

casting doubt on the validity of [the] complainant's title, (2) reasonably calculated to cause

h~rin, mid (3) resulting in special damagesm (39 Coll. Point Corp. v Trdnspad Capital

Corp., 27 Ab3d 454, 455 [2d Dept 2006]., quoting Brown v Bethlehern Terrace Assoc., 136

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AD2d 222, 224 [3d Dept 1988]). "The wrongful filing for record of a document which casts

a doud upoh another's title to or interest in realty is dearly such an act of publication as to

give rise to an action for slander of title, if provable damages result" (Hanbidge v Hunt, l 83

AD2d 700, 701 [2d Dept 1992] [internal quotation marks omitted]}. "Special damages 'must

be alleged with sufficient particularity to identiiy actual losses and be related catisally to the

alleged tortious act[ l';' (Shahid v Slochowsky & Slochowsky, LLP; 208 AD3d 138}, 1383

[2d Dept 2022]; quoting Luciano v Handcock, 78 AD2d 943, 944 [3d Dept 1980]}

In its second counterclaim, DBJPM does not sufficiently allege facts with

particularity, nor is there any ptoof in the record to demonstrate, that its closing with

Essence was affected by the filing of the lien, that Essence is or will be asserting any claims

against DBJPM as a result of the lien, or that DBJPM has otherwise incurred any special

damages from the filingofthe lien.

Thus, upon a search of the record, the court grants swnmary judgment to plaintiff to

the extentnf dismissing the·second·couhterclaim for slander·oftitle{CPLR 3212 [b]).

Any reliefnot expressly granted hereillhas been considered, and is denied.

Theforegoing constitutes the decision, order and judgment of the court.

HON. KERRY .T. WARD A. J. S. C. Hon. Kerry J. Ward. A.J,S.C.

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