Opinion
September 18, 1995
Appeal from the Supreme Court, Westchester County (Donovan, J.).
Ordered that the appeal from the order is dismissed, without costs or disbursements, as no appeal lies from an order denying a motion to set aside a decision (see, Behrens v Behrens, 143 A.D.2d 617); and it is further,
Ordered that the judgment is reversed, on the law and the facts, and the complaint is dismissed; and it is further,
Ordered that the appellants are awarded one bill of costs.
The Supreme Court erred in awarding judgment in favor of the plaintiff and the defendant Window-Tech, Inc. (hereinafter Window-Tech) since the plaintiff's mechanic's lien terminated by operation of law on May 9, 1993, three years after it was extended by the plaintiff's filing of the notice of pendency, and the respondent Window-Tech failed to submit any evidence showing that it timely filed such a notice of pendency (see, Lien Law § 17; CPLR 6513; Sunny Constr. v. Revella, 131 A.D.2d 560; Modular Steel Sys. v. Avlis Contr. Corp., 89 A.D.2d 891; Spartan Concrete Corp. v. Harbour Val. Homes, 71 A.D.2d 950).
Moreover, neither the plaintiff nor Window-Tech has demonstrated that the defendants diverted and/or misappropriated trust assets in violation of Lien Law article 3-A (cf., Caristo Constr. Corp. v Diners Fin. Corp., 21 N.Y.2d 507; South Carolina Steel Corp. v Miller, 170 A.D.2d 592; Schwadron v Freund, 69 Misc.2d 342). Accordingly, there was no basis for awarding judgment in favor of the plaintiff and Window-Tech.
We have examined the plaintiff's remaining contentions in support of an affirmance and find them to be without merit.
In light of the foregoing determination, we need not address the appellants' remaining contentions. Mangano, P.J., Joy, Krausman and Florio, JJ., concur.