Opinion
November 20, 1950.
LeRoy B. Iserrnan, Huntington, for plaintiff.
Howard T. Hogan, Farmingdale, for defendants Kostanoski, Kendrick, C. Smith, Hempstead, of counsel.
Application by the owners of property, against which a mechanic's lien was filed, to discharge the same of record pursuant to subdivision (6) of Section 19 of the Lieu Law.
It appears without contradiction that the notice of mechanic's lien was filed on March 8, 1949 in the offices of the Clerks of the Counties of Nassan and Suffolk. This notice, a copy of which is attached to the petition, shows as follows: "The time when the last items of work and material were performed was November 3, 1948."
Thus it is evident from the notice of lien itself that the completion dale was more than four mouths prior to its filing. Consequently, it appears from the public records that Section 10 of the Lien Law, which requires a notice of lien to be filed "at any time during the progress of the work and the furnishing of the materials, or, within four months after the completion of the contract, or the final performance of the work, or the final furnishing of the materials, dating from the last item of work performed or materials furnished" had not been complied with. The lienor, however, in an affidavit submitted by his attorney, points out "that while file last item of work done from the last item of materials furnished was on November 3, 1948, the contract was not completed on November 3rd because the plaintiff guaranteed to replace trees and shrubs which did not survive the original planting up to one year after the date of completion of the original planting." Consequently, he urges that "the contract was not by its terms completed until one year after the last day of the planting and that plaintiff performed this guarantee during said one year guarantee and after the lien was filed."
Inasmuch as it appears on the face of the notice of lien as filed that the completion date of the actual work required by the contract was more than four months prior to the filing of the notice, such notice of lien may be attacked summarily. Mechanics' Liens, by Eugeue Blanc, Jr., Sec. 56c, pp. 352, 353. It may be noted that no mention was made therein of the existence of the one year guarantee. Therefore, it cannot be said, upon an examination of the public records, that Section 10 of the Lien Law had been complied with. In any event, it has been held that work done pursuant to a guarantee of good workmanship does not extend the time in which to file a lien in compliance with Section 10. Mechanics' Liens, by Eugene Blanc, Jr., Sec. 36d, pp. 200-201; J. Adelman, Inc. v. Church Extension Committee of Presbytery of New York, 136 Misc. 810, 241 N.Y.S. 197.
It follows that the application must be and is granted. Settle order on notice.