Opinion
January 9, 1954.
Proceedings in application for order vacating and cancelling a mechanic's lien and for order directing return of deposit filed by owners. The Supreme Court, Kings County, Brown, J., held that provision of lien law that no lien shall be a lien for longer period than one year after notice has been filed unless the lienor either forecloses lien within one year period or obtains an order of court continuing the lien for another one year period, is self-executing so that if year expires and lienor has not taken the necessary steps, the lien lapses without any court order or further action.
Motion granted.
Frank H. Twyeffort, New York City, for lienor.
Samuel Korb, Brooklyn, for owners.
Application by petitioners for an order vacating and canceling a mechanic's lien and for an order directing the return of the deposit filed by them with the county clerk's office pursuant to section 20 of the Lien Law. The lienor opposes the application on the ground that the petitioners have failed to comply with section 59 of the Lien Law. The notice of lien was filed on March 12, 1952. On August 18, 1952, and pursuant to section 20 of the Lien Law, the lien was discharged by the petitioners depositing the full amount due with the county clerk's office. No action to foreclose the lien was taken or order continuing the lien was obtained until January 1, 1954, when a summons in such an action was served. The petitioners are entitled to the relief sought. Section 17 of the Lien Law provides that no lien shall be a lien for a longer period than one year after the notice has been filed unless the lienor either forecloses the lien within the one-year period or obtains an order of the court continuing the lien for another one-year period. This section is self-executing so that if the year expires and the lienor has not taken the aforementioned necessary steps, the lien lapses without any court order or further action. Malafsky v. Becker, 255 App.Div. 444, 7 N.Y. S.2d 825. Matter of Standard Tile Co., 256 App.Div. 1096, 11 N.Y. S.2d 603. Sections 19 and 20 provide the methods and the only methods by which a lien may be discharged, which embraces lapsing of the lien under section 17. Section 59, on the other hand, is only applicable where the owner moves to vacate or cancel the lien for neglect of the lienor to prosecute the same, and in order to obtain such an order the provisions of the section must be fully complied with; otherwise the lienor may defeat such application by commencing the action to foreclose. However, the relief to a lienor provided for under section 59 presupposes that she lien is still in effect and has not been discharged, canceled or lapsed. The lienor cannot, under the circumstances herein, rely on a non-compliance of the provisions of section 59 on the petitioners' part because the lien had lapsed within a year after it was filed. Matter of Standard Tile Co., supra. The authorities cited by the lienor are inapposite in their facts and distinguishable in law. All of the cases cited reveal that the applications under sections 20 and 59 of the Lien Law were instituted within the one-year period provided by section 17. The motion is granted. Settle order on notice.