Opinion
August 31, 1973
Robert Kwasnik, petitioner in person.
Harry Lott, County Attorney, for respondent.
The petitioner herein contends that on July 20, 1973, pursuant to the requirements of section 20 Lien of the Lien Law, he tendered to the County Clerk of Westchester County the appropriate amount of cash to obtain the discharge of a mechanic's lien filed against property owned by petitioner. The County Clerk has refused to discharge the lien.
The petitioner seeks an order of this court in this CPLR article 78 proceeding directing the County Clerk of the County of Westchester to accept the said cash deposit to discharge the said mechanic's lien. The County Clerk has based his refusal to do so on the ground that a search of his records revealed that there was then pending an action to foreclose the said mechanic's lien.
Petitioner contends that he was never served with process in any action to foreclose the said lien, and that there is no such action now pending against him.
Under these circumstances, it would seem that the petitioner has two courses available to him. The first is a motion to dismiss the action now pending against him on the record, on the ground that the summons and complaint were never served upon him, or to ignore the situation at the moment and proceed pursuant to the provisions of section 20 Lien of the Lien Law, which outlines the procedure for making such cash substitution to discharge a mechanic's lien while an action to foreclose the lien is on the record.
In my opinion, it is not the responsibility of the County Clerk to look beyond the records of actions pending in his county to determine his responsibilities pursuant to section 20 Lien of the Lien Law.
In view of the foregoing, and the availability of alternative procedures, relief sought by way of mandamus in this article 78 proceeding must be denied.