In re Attica Constr. Co. v. Tycoon Consr. Co.

Full title: IN THE MATTER OF THE APPLICATION OF ATTICA CONSTRUCTION CORP., Petitioner…

Court: Supreme Court of the State of New York, Queens County

Date published: Aug 17, 2011

2011 N.Y. Slip Op. 51576 (N.Y. Misc. 2011)

Opinion

11820/2011.

Decided August 17, 2011.

For the Petitioner: Law Offices of Steve Newman, by Steve Newman, Esq., New York, NY.

For the Respondent: Miriam Janicki-Crespo, Esq., Jackson Heights, New York.

CHARLES J. MARKEY, J.

The following papers numbered 1 to 7 read on this petition to vacate, cancel, and discharge a lien for a public improvement project filed by respondent on October 1, 2002.

Papers Numbered

Notice of Petition, Petition-Affidavits-Exhibits..................................... 1-3 Answering Affidavits — Exhibits...................................................... 4-5 Reply Affidavits..................................................................... 6-7

Upon the foregoing papers it is ordered and adjudged that the petition is granted.

Pursuant to Lien Law section 12, a notice of public improvement lien may be filed "with the head of the department or bureau having charge of such construction or demolition and with the comptroller of the state or with the financial officer of the public corporation, or other officer or person charged with the custody and disbursements of the state or corporate funds applicable to the contract under which the claim is made" ( Id. [emphasis added]). In addition, the notice shall state, "the amount claimed to be due or to become due, the date when due. . . ."

The statute clearly requires the notice of lien for a public improvement be filed with both the head of the department in charge of the improvement and the custodian of the funds ( see, EMC Iron Works v City of New York, 294 AD2d 173, 174 [1st Dept. 2002]; Matter of Callanan Indus., Inc., v Highbridge Elec. Co., 88 Misc 2d 802 [Sup Ct Albany County 1975]).

The lien records provided to the petitioner by the New York Housing Authority indicate only one filing by respondent that is stamped with the word disbursement. The failure to comply with the dual filing requirements renders respondent's public improvement lien invalid ( Ludlow Valve Mfg. Co. v Village of Middleport, 105 Misc 328 [Sup Ct Niagara County 1918], aff'd, 193 App Div 923 [4th Dept. 1920], modified on other grounds, 233 NY 625). Although the due date can be ascertained or gleaned from the lien document ( Matter of Callanan Indus., Inc., v Highbridge Elec. Co., 88 Misc 2d 802, supra), the issue is academic as a result of the filing defect.

Accordingly, the notice of lien dated October 1, 2002, filed by Tycoon Construction Corp. with the Disbursement Department of the New York City Housing Authority ("NYCHA") in the sum of $78,503.00, pursuant to contract number AP0000008C68 between the NYCHA and Attica Construction Corp., is canceled and discharged for failure to comply with Lien Law section 12. The NYCHA and its fiscal officers are directed to enter the discharge in the lien records in accordance with this order.

The foregoing constitutes the decision, order, and opinion of the Court.