Opinion
June 29, 1960
Bertram Zweibon for petitioner.
Harold S. Kohn for respondent.
Motion to cancel the undertaking and discharge of record a certain notice of mechanic's lien.
It is petitioner's contention that more than a year has elapsed since the filing of the notice of lien and that during such time lienor has taken no steps to foreclose the said lien or procure an order to continue such lien for a longer period.
Petitioner concedes that an action has been brought in the Municipal Court to establish the lien, but contends that such action is not a proceeding enumerated in section 17 Lien of the Lien Law and does not extend the life of the said lien for a longer period than one year after the notice of lien has been filed.
The lien herein was filed March 23, 1959. An undertaking was filed on April 28, 1959 and approved on May 13, 1959.
Action was commenced in the Municipal Court on March 29, 1960 to establish the lien.
Section 59 Lien of the Lien Law provides for the cancellation of record of the lien by the posting of a bond. The real property thereafter is relieved of the incumbrance and the remedy of lienor is to establish the validity of the lien, and, if found valid, to procure a judgment upon the undertaking, rather than a judgment of foreclosure against the real estate. And such action may be brought before or after the filing of the undertaking ( White Plains Sash Door Co. v. Doyle, 262 N.Y. 16-19).
In the above-cited case, the court also stressed the apparent inconsistency of section 17 Lien of the Lien Law in regard to continuing lien, wherein a lien will be continued beyond one year if within that time "an action is commenced to foreclose the lien, and a notice of the pendency of such action" be filed; yet, where "a lien is discharged by deposit or by order, a notice of pendency of action shall not be filed". In comment, the court stated (pp. 20-21) "We think that since the Legislature conditioned the continuance of the lien upon the performance of two acts, one of which, by its express command, was forbidden to be done, necessarily continuance of the lien must follow, if the one act permitted to be done is performed. Therefore, we hold that the bringing of the action to foreclose is sufficient in itself to continue the lien, so far as that may be necessary for the continued prosecution of the action against those signing the undertaking."
Subdivision 1 of section 6 of the New York City Municipal Court Code specifically provides for an action to establish a mechanic's lien on real property and to recover a personal judgment for the amount due.
Upon the prevailing law, petitioner's contention is not supported. Accordingly, the application is denied.