                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 7, 2016                     521711
________________________________

EDWARD R. SIM, Doing Business
   as PYRAMID EQUIPMENT, et al.,
                    Respondents,
      v                                     MEMORANDUM AND ORDER

FARLEY EQUIPMENT COMPANY LLC
   et al.,
                    Appellants.
________________________________


Calendar Date:   February 19, 2016

Before:   Peters, P.J., Garry, Rose, Lynch and Clark, JJ.

                             __________


      Fischer, Bessette, Muldowney & Hunter, LLP, Malone (John J.
Muldowney of counsel), for appellants.

      Antonucci Law Firm, Watertown (David P. Antonucci of
counsel), for respondents.

                             __________


Lynch, J.

      Appeal from an order of the Supreme Court (Main Jr., J.),
entered March 26, 2015 in St. Lawrence County, which, among other
things, partially denied defendants' motion to dismiss the
complaint.

      Plaintiffs commenced this action alleging that they entered
into oral agreements permitting defendants to use two of their
excavators in various construction projects, but that defendants
failed to pay for the use of the excavators and also damaged the
excavators. They asserted causes of action for prejudgment
attachment, Lien Law article 3-A violations, breach of contract
and quantum meruit. Defendants made a pre-answer motion to
                              -2-                521711

dismiss the complaint for failure to state a cause of action (see
CPLR 3211 [a] [7]) and also asserted the statute of frauds as an
alternative ground to dismiss the breach of contract cause of
action (see CPLR 3211 [a] [5]). Supreme Court dismissed the
cause of action that was labeled as being for prejudgment
attachment, but otherwise denied defendants' motion. Defendants
appeal.1

      We affirm. "When assessing the adequacy of a complaint in
light of a CPLR 3211 (a) (7) motion to dismiss, the court must
afford the pleadings a liberal construction, accept the
allegations of the complaint as true and provide plaintiff[s]
. . . 'the benefit of every possible favorable inference'" (AG
Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5
NY3d 582, 591 [2005], quoting Leon v Martinez, 84 NY2d 83, 87
[1994]). "Whether the plaintiff[s] 'can ultimately establish
[their] allegations is not part of the calculus in determining a
motion to dismiss'" (J.P. Morgan Sec. Inc. v Vigilant Ins. Co.,
21 NY3d 324, 334 [2013], quoting EBC I, Inc. v Goldman, Sachs &
Co., 5 NY3d 11, 19 [2005]). "Courts may consider affidavits
submitted in opposition to such a motion to cure any defects in
the complaint" (Torok v Moore's Flatwork & Founds., LLC, 106 AD3d
1421, 1421 [2013]; see Sargiss v Magarelli, 12 NY3d 527, 531
[2009]).

      With respect to the cause of action under Lien Law article
3-A, such statute applies to improvements to real property and
imposes certain obligations on entities or persons deemed
trustees under the statute to ensure payment to beneficiaries
(see Lien Law §§ 70, 71; Mount Vernon City School Dist. v Nova


    1
        The filing of an amended complaint while the motion was
pending does not, as urged by plaintiffs, render this appeal
moot. The amended complaint was served prior to the parties'
appearance before Supreme Court to argue the motion. Moreover,
the minor additions in the amended complaint did not
substantively alter the challenged causes of action (see Marston
v General Elec. Co., 121 AD3d 1457, 1457 n 1 [2014]; Aetna Life
Ins. Co. v Appalachian Asset Mgt. Corp., 110 AD3d 32, 39 [2013]).
                              -3-                521711

Cas. Co., 19 NY3d 28, 37 [2012]; NY Professional Drywall of OC,
Inc. v Rivergate Dev., LLC, 100 AD3d 216, 219 [2012]). The
relevant statutory definitions provide, among other things, that
a trustee includes a contractor or subcontractor (see Lien Law
§ 70 [2]), and a beneficiary includes a materialman (see Lien Law
§ 71 [2]). A materialman is defined as, among other things, one
who furnishes "machinery" or "equipment" used by a contractor or
subcontractor in a project improving real property (Lien Law § 2
[12]; see Matter of P.J. Carlin Constr. Co. v A to Z Equip.
Corp., 31 AD2d 546, 546 [1968]; 8-92 Warren's Weed, New York Real
Property § 92.10 [5] [h] [2015]). In their pleadings, as well as
affidavits submitted in opposition to the motion (including
affidavits from former employees of defendants), plaintiffs
indicated that the subject excavators were used by defendants to
perform work improving real property for public and private
entities on numerous construction projects where defendants were
contractors or subcontractors. Plaintiffs further asserted that
they entered into a series of oral agreements with defendants
regarding the use of the excavators during such time period and
that they were not paid any rental amounts. These allegations
are sufficient to state a cause of action under Lien Law article
3-A.2

      The remaining arguments do not require extended discussion.
Although the nature, length and terms of the purported oral
agreements between plaintiffs and defendants regarding the
excavators are sharply contested, nevertheless, there are ample
allegations in the pleadings and assertions in plaintiffs'
affidavits to avoid CPLR 3211 (a) (7) dismissal of the causes of
action for breach of contract and quantum meruit (see Hyman v
Burgess, 125 AD3d 1213, 1214-1215 [2015]; Schultz Constr. v
Franbilt, Inc., 285 AD2d 936, 937-938 [2001]). Nor was the
statute of frauds defense under General Obligations Law § 5-701
(a) (1) absolutely established since there are allegations
indicating not simply a single agreement spanning more than a


    2
        Defendants' argument regarding the statute of limitations
applicable to the Lien Law was raised for the first time in their
reply brief and, as such, is not properly before us (see Matter
of Claydon, 103 AD3d 1051, 1054 [2013]).
                              -4-                  521711

year, but, instead, a series of agreements. In such regard,
defendants failed to show that the oral agreements alleged by
plaintiffs, "by their terms, 'have absolutely no possibility in
fact and law of full performance within one year'" (Cron v Hargro
Fabrics, 91 NY2d 362, 366 [1998], quoting D & N Boening v Kirsch
Beverages, 63 NY2d 449, 454 [1984]; see Gizara v New York Times
Co., 80 AD3d 1026, 1028 [2011]). Finally, contrary to the
contention of defendant BS Industrial Contractors, Inc., there
are sufficient allegations of its involvement in the purported
agreements to avoid dismissal as to it at this procedural point
in the litigation (see e.g. CR Best Rd., LLC v Camps Mogen
Avraham, Heller, Sternberg, Inc., 103 AD3d 1075, 1076 [2013] [on
an appeal from a CPLR 3211 motion, "a minimal showing of
potential merit will avoid dismissal"]).

     Peters, P.J., Garry, Rose and Clark, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
