Robert H. Finke & Sons, Inc. v. Sears Oil Co. , 681 N.Y.S.2d 829 ( 1998 )

Peters, J.

Appeal from an order of the Supreme Court (Harris, J.), entered July 21, 1997 in Albany County, which, inter alia, granted plaintiff’s cross motion for summary judgment.

In November 1993, defendant contracted with Burgess Construction Services, Inc. (hereinafter Burgess) to retrofit its oil storage tanks. In connection therewith, plaintiff was hired to provide certain construction equipment. As a result of Burgess’ failure to complete the project, defendant commenced an action in Federal District Court to recover damages resulting therefrom. This action stems from plaintiff’s failure to receive payment for equipment provided.

Prior to the commencement of this action, plaintiff filed a mechanic’s lien against defendant in the amount of $9,879.29, including finance charges. Therein, plaintiff alleged that its contract was with Burgess. Here, however, it is alleged that defendant agreed to pay for the leasing of this equipment, that plaintiff duly performed said services and, as evidenced by copies of invoices sent to defendant which defendant never disputed, it failed and/or refused to pay.

After joinder, defendant moved to dismiss the complaint for failure to state a cause of action. It alleged, inter alia, that there was no privity between itself and plaintiff as evidenced by documentation filed by plaintiff in support of the mechanic’s lien. Moreover, defendant contended that the instant action was one under a mechanic’s lien which could not be maintained pursuant to the Lien Law. Upon plaintiff’s cross motion for summary judgment, Supreme Court concluded that an action for breach of an agreement to pay was sufficiently pleaded and that by the proffer of invoices bearing defendant’s name and address, plaintiff had demonstrated its entitlement to judgment as a matter of law. Finding a failure to overcome this proffer to demonstrate the existence of a triable factual issue, plaintiff was awarded summary judgment.

Upon our review and in conformance with the general rule that a property owner will not be held liable to its general contractor’s subcontractor in the absence of an agreement to be bound or circumstances that give rise to such an obligation (see, Graystone Materials v Pyramid Champlain Co., 198 AD2d 740, 741; Westinghouse Elec. Supply Co. v Brosseau & Co., 156 AD2d 851, 853), we find the award of summary judgment to be premature.

Plaintiff’s proffer encompassed, in the absence of a written agreement, evidence indicating defendant’s provision of numerous credit references, as well as the mailing of invoices to defendant bearing its name and address. Plaintiff’s president averred that all business pertaining to such rental was by direct communication with defendant to whom the equipment was delivered. Further buttressing its position was defendant’s inclusion of the mechanic’s lien in its Federal action against Burgess as an obligation incurred by it as a result of Burgess’ default.

With the onus now shifted to defendant to demonstrate the existence of a triable issue of fact (see, Zuckerman v City of New York, 49 NY2d 557), we find defendant’s proffer of plaintiff’s documentation in its notice of mechanic’s lien indicating that its contract was with Burgess, not defendant, to have satisfied that burden.

For these reasons, we hereby modify Supreme Court’s order by reversing so much thereof as granted plaintiff’s cross motion for summary judgment.

Cardona, P. J., Spain and Graffeo, JJ., concur.