Opinion
November 23, 1992
Appeal from the Supreme Court, Richmond County (Sangiorgio, J.).
Ordered that the order and judgment is affirmed, with costs.
Lien Law § 11 requires a party to serve a notice of lien on the owner, and expressly states that failure to file proof of service within 35 days after the notice of lien is filed shall terminate the notice as a lien. Since the appellant failed to file proof of service as required by the clear and unambiguous language of the statute, the Supreme Court properly granted the petition to vacate the lien (see, Matter of Hui's Realty v Transcontinental Constr. Servs., 168 A.D.2d 302, 302-303; Murphy Constr. Corp. v Morrissey, 168 A.D.2d 877, 878).
The appellant further contends that the Supreme Court was precluded from considering the instant application since it had denied a prior application to vacate the same lien on other grounds. However, the Supreme Court was not so precluded, since the question of whether the appellant had complied with Lien Law § 11 was never addressed in the prior application (see, Matter of McGrath v Gold, 36 N.Y.2d 406, 413; Dittmer v State of New York, 140 A.D.2d 663).
Further, the instant application could be treated as an application to renew the prior application based on the newly-discovered fact that the appellant had not complied with Lien Law § 11. Even if evidence of a violation of Lien Law § 11 had been available at the time of the original application, the Supreme Court nonetheless could, in its discretion, grant renewal (see, Canzoneri v Wigand Corp., 168 A.D.2d 593; DeOlden v State of New York, 107 A.D.2d 790, 791). Balletta, J.P., Rosenblatt, Miller and O'Brien, JJ., concur.