Matter of Kleet Lumber Co., Inc.

7 Citing cases

  1. B&G Elec. Contractors of N.Y. Inc. v. N.Y.C. Econ. Dev. Corp. (In re King Freeze Mech. Corp.)

    2012 N.Y. Slip Op. 33469 (N.Y. Sup. Ct. 2012)

    However, it is also settled that in those cases in which the notice of the lien " 'totally misidentifies the true owner' of the real property as of the date it was filed, the defect is jurisdictional and the notice is void." (Long Industries Construction Corp. v. Appelaniz, 298 A.D.2d 309, 784 N.Y.S. 2d 496 [1st Dept. 2002], citing Matter of Kleet Lbr. Co., 197 A.D.2d 576,577 , 602 N.Y.S. 2d 663 [1st Dept. 1993]).

  2. In re Carnegie Hill North v. Diontech Consulting

    2009 N.Y. Slip Op. 32110 (N.Y. Sup. Ct. 2009)

    The court notes that the Recording and Endorsement Cover Page submitted by petitioner as an exhibit to the petition states that the deed of sale was recorded or filed with the Office of the City Register on June 4, 2007; however, that slight difference in dates does not appear to have any bearing on the dispute regarding the validity of the mechanic's lien. Citing Long Indus. Constr. Corp. v Appelaniz ( 298 AD2d 309 [1st Dept 2002]), Matter of Kleet Lumber Co. (DMC Management, Inc.) ( 197 AD2d 576 [2d Dept 1993]), and Matter of Tri Quality Mech. Corp. v Chappastream Corp. ( 138 AD2d 610 [2d Dept 1988]), petitioner contends that, pursuant to Lien Law ยง 9 (2) the mechanic's lien must be vacated and terminated, because the lien misidentifies the owner of the premises, and, therefore, is jurisdictionally defective and cannot be cured by an amendment. Diontech, however, counters that the owner is merely misdescribed, not misidentified, and that Diontech should be permitted to amend the notice of lien nunc pro tunc.

  3. Rigano v. Vibar Constr., Inc.

    109 A.D.3d 829 (N.Y. App. Div. 2013)   Cited 4 times

    The Supreme Court granted leave to reargue and, upon reargument, granted Rigano's petition, in effect, to summarily discharge the mechanic's lien and denied the appellant's petition to amend the notice of lien. Contrary to the appellant's contention, the Supreme Court properly granted reargument and, upon reargument, properly discharged the mechanic's lien and denied the appellant's petition to amend the notice of lien. โ€œWhile a failure to state the true owner or contractor or a misdescription of the true owner will not affect the validity of a notice of lien (Lien Law ยง 9[7] ), a misidentification of the true owner is a jurisdictional defect which cannot be cured by an amendment nunc pro tuncโ€ ( Matter of Tri Quality Mech. Corp. v. Chappastream Corp., 138 A.D.2d 610, 611, 526 N.Y.S.2d 194;see Gates & Co. v. National Fair & Exposition Assn., 225 N.Y. 142, 156, 121 N.E. 741;Triโ€“State Solโ€“Aire Corp. v. Lakeville Pace Mech., 221 A.D.2d 519, 633 N.Y.S.2d 834;Matter of Kleet Lbr. Co. [DMC Mgt.], 197 A.D.2d 576, 602 N.Y.S.2d 663;Di Paolo v. H.B.M. Enters., 95 A.D.2d 794, 463 N.Y.S.2d 511). Here, the notice of lien completely misidentified the true owner of the subject premises as of the date it was filed.

  4. Northeast Restoration Corp. v. K & J Construction Co.

    304 A.D.2d 306 (N.Y. App. Div. 2003)   Cited 14 times
    In Northeast, Atlas and Diamond, the liens were filed solely against a superceded single lot number for the entire condominium building and did not identify the separate lot numbers assigned to each unit at the time of the lien filing (Northeast, 304 AD2d at 307; Atlas, 191 AD2d at 247; Diamond, 179 AD2d at 420).

    under Lien Law ยง 9(7) as against specific condominium units because, by setting forth the former superseded single lot number for the entire building rather than the separate lot numbers assigned to each unit in connection with the conversion, it fails to properly describe the specific units that plaintiff sought to encumber (Matter of Atlas Tile Marble Works, 191 A.D.2d 247). Under Real Property Law ยง 339-l(1), such a post-declaration lien is also invalid as against the building's common elements because it was filed without the unanimous consent of the unit owners (id.). Lien Law ยง 12-a, which allows amendments of notices of lien nunc pro tunc, "presupposes the existence of a valid lien and may not be construed to revive an invalid notice of lien" (id.). A contrary result is not warranted merely because the lien's misidentification of the lot numbers and owners was the result of plaintiff's apparently inadvertent failure to make a thorough search of the relevant public records (see Matter of Kleet Lbr. Co., 197 A.D.2d 576, 577). Nor does it avail plaintiff that the former owner bonded an invalid lien (see Matter of Diamond Architecturals v. EFCO Corp., 179 A.D.2d 420, appeal dismissed 80 N.Y.2d 919), or that its answer did not affirmatively plead the lien's invalidity (see Spring Sheet Metal Roofing Co. v. County of Monroe Indus. Dev. Agency, 226 A.D.2d 1064, 1066). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

  5. Long Indus. Constr. Corp. v. Appelaniz

    298 A.D.2d 309 (N.Y. App. Div. 2002)   Cited 6 times

    Before: Tom, J.P., Saxe, Sullivan, Rosenberger, Lerner, JJ. Where, as here, the notice of mechanics' lien "totally misidentifie[s] the true owner" of the real property as of the date it was filed, the defect is jurisdictional and the notice is void (Matter of Kleet Lumber Co., 197 A.D.2d 576, 577). The jurisdictional defect is not obviated "merely because the misidentification of the true owner of the propert[ies] was the result of an [apparent] failure to make a thorough search of the County Clerk's records" (id.).

  6. Matter of Onorati v. Testco, Inc.

    204 A.D.2d 876 (N.Y. App. Div. 1994)   Cited 4 times

    Notably, no claim is made that Testco and Testco Tank were not separate and distinct legal entities, or that Testco was simply operating under the name "Testco Tank and Pump, Inc." (see, Matter of Corina Assocs. v. McManus, Longe, Brockwehl, 39 A.D.2d 613, 614; cf., Matter of Kleet Lbr. Co. [DMC Mgt.], 197 A.D.2d 576, 576-577). Moreover, inasmuch as the lien filed on Testco's behalf, of which all the parties were apprised, was nevertheless allowed to expire, it cannot fairly be argued that the amendment should be granted for equitable reasons; given these circumstances, Supreme Court cannot be faulted for refusing to exercise its discretion to permit of an amendment "[i]n a proper case" (Lien Law ยง 12-a).

  7. MATTER OF DUCE CONSTR. CORP. v. COMPACT HVAC

    2009 N.Y. Slip Op. 32990 (N.Y. Sup. Ct. 2009)

    The misidentification of an owner on a mechanic's lien renders such lien jurisdictionally defective and void as a matter of law, and the lien must be summarily discharged. Long Industries Construction Corp. v Appelaniz, 298 AD2d 309 (1st Dept 2002); Matter of Kleet Lumber Co. (DMC Management), 197 AD2d 576 (2d Dept 1993). Further, this lien was discharged when Duce paid the amount of the lien into the court.