And, unlike a statute of limitations, the filing of a foreclosure action does not toll the expiration of a common charge lien. See Chem. Bank v. Levine, 91 N.Y.2d 738, 741 (1998) ("The statute does not refer to the time for commencing an action on the lien, but rather to the duration of the lien itself."). The Judgment of Foreclosure could not have related to the 2003 Common Charge lien because it was no longer in effect.
It is a general rule of statutory construction that when the law expressly allows for one thing, an inference must be drawn that what is omitted or not included was intended to be omitted or excluded ( see McKinney's Statutes § 240; Arons v. Jutkowitz, 9 N.Y.3d 393, 850 N.Y.S.2d 345, 880 N.E.2d 831 [2007] ). Here, by enacting CPL § 250.10(3)—which explicitly allows the presence of both defense counsel and the district attorney during the psychiatric examination—and by enacting CPL § 250.10(4)—which explicitly allows a “recording” of the examination-the legislature demonstrated that it “knows how” ( Chemical Bank v. Levine, 91 N.Y.2d 738, 675 N.Y.S.2d 583, 698 N.E.2d 419 [1988] ) to provide for a lawyer's presence and audio or video recording at psychiatric examinations. The legislature's enactment of those provisions in CPL § 250.10, together with the legislature's failure to enact analogous, corollary provisions in CPL § 730, also demonstrates that the legislature chose not to so provide for a lawyer's presence and/or recording at competency examinations conducted pursuant to CPL § 730 ( see McKinney's Statutes § 240; Arons, 9 N.Y.3d 393, 850 N.Y.S.2d 345, 880 N.E.2d 831; Chemical Bank v. Levine, 91 N.Y.2d 738, 675 N.Y.S.2d 583, 698 N.E.2d 419 [1988]; Flores v. Lower East Side Service Center, 4 N.Y.3d 363, 795 N.Y.S.2d 491, 828 N.E.2d 593 [2005] ). Given the foregoing legislative enactments, this Court declines to read into the CPL § 730 statute a right on the part of the People to be present at, or to videotape, the competency examination of defendant.
The Board based its claims on the lien it filed in 2019, within six years of that lien's expiration (Real Property Law § 339-aa). The Board was also entitled to recover unpaid common charges described in the lien dating back to January 2013 because the six-year time period in Real Property Law § 339-aa refers not to how long ago the unpaid common charges may have accrued, but "to the duration of the lien itself" (Chemical Bank v Levine, 91 N.Y.2d 738, 741 [1998]).
Although Real Property Law § 339-z establishes a statutory lien for unpaid common charges in favor of the board of managers of a condominium, Real Property Law § 339-aa further provides that such a lien does not become effective until a verified notice of lien is filed in the office of the appropriate recording officer. Since it is undisputed that the Condominium never filed such a lien, it had no basis for claiming a share of the surplus proceeds of the first mortgagee's foreclosure action ( see Chemical Bank v Leuine, 91 NY2d 738, 742; see also Matter of Mishkin, 85 BR 18; Board of Directors of Hunt Club at Coram Homeowners Assn., Inc. v Hebb, 22 Misc 3d 584, 586-587; Washington Fed. Sav. Loan Assn. v Schneider, 95 Misc 2d 924, 928). Inasmuch as the Condominium and the mortgagor were the sole claimants to the surplus money, any remaining amount, less the administrative charges of the Kings County Treasurer and the approved fees of the Referee, revert to the mortgagor, the defendant Konstantin Levin.
Thus, the Legislature knows how to explicitly state that a revival statute applies to a wrongful death claim when that is its intent. See Chemical Bank v. Levine, 91 N.Y.2d 738, 742 (1998). The absence of such language in the CVA is not surprising-it is consistent with the express intent of the legislators to provide justice to survivors of sexual abuse even though the abuse took place many years ago.
Thus, the Legislature knows how to explicitly state that a revival statute applies to a wrongful death claim when that is its intent. SeeChemical Bank v. Levine , 91 N.Y.2d 738, 742, 675 N.Y.S.2d 583, 698 N.E.2d 419 (1998).
Therefore, absent a valid defense, plaintiff is entitled to judgment in its favor on the issue of liability as a matter of law (Board of Mgrs. of the Garden Terrace Condominium v Chiang, 247 AD2d 237, 237, 668 NYS2d 364 [1st Dept 1998]; 90 E. End Ave. Condominium v Becker, 2010 NY Slip Op 31660 [U], supra, slip op at 10]). Plaintiff also submitted sufficient proof to establish, prima facie, that the affirmative defenses set forth in Yerk's answer are subject to dismissal due to their unmeritorious nature (see, Becher v Feller, 64 AD3d 672, 884 NYS2d 83 [2d Dept 2009]; Wells Fargo Bank Minn., N.A. v Perez, 41 AD3d 590, 837 NYS2d 877 [2d Dept 2007]; Coppa v Fabozzi, 5 AD3d 718, 773 NYS2d 604 [2d Dept 2004] [unsupported affirmative defenses are lacking in merit]; see also, Chemical Bank v Levine, 91 NY2d 738, 741, 675 NYS2d 583 [1998] [RPL §339-aaprovides that a properly filed common charge lien "shall continue in effect until all sums secured thereby, with interest thereon, shall have been fully paid or until expiration six years from the date offiling, whichever occurs sooner"]; compare RPL §339-aa, with CPLR 213[2] [the applicable statute of limitations with respect to contractual obligations is six years). As plaintiff duly demonstrated its entitlement to judgment as a matter of law, the burden of proof shifted to Yerk (see, HSBC Bank USA v Merrill, 37 AD3d 899, 830 NYS2d 598 [3d Dept 2007]).