Opinion
July 5, 1967
Order and judgment of the Supreme Court, Kings County, respectively dated May 25, 1966 and May 26, 1966, reversed, with $30 costs and disbursements, and respondents' motion for summary judgment denied. This appeal turns on whether a plaintiff contractor waived its right to file a mechanic's lien. For such a waiver section 34 Lien of the Lien Law mandates "an express agreement in writing specifically to that effect, signed by him or his agent." Special Term has found that provisions in a lease between the owners and tenants which were incorporated by reference into the contract between the lienor and the tenants were "tantamount" to compliance with the statute. We disagree. The provisions for waiver of this right are not sufficiently expressed; they clearly do not pronounce that intention with specificity; and the main document, the lease, is not signed by the lienor or his agent (see Heist Ohio Corp. v. Bethlehem Steel Co., 20 A.D.2d 201). Since the statutory tests have not been met in this case, the motion for summary judgment dismissing the complaint and discharging the lien should be denied. Christ, Rabin, Benjamin and Munder, JJ., concur; Beldock, P.J., concurs in result only. [ 50 Misc.2d 161.]