Opinion
February 19, 1959
Robert M. Blakeman for judgment creditor.
Louis J. Lefkowitz, Attorney-General, for third party.
De Graff, Foy, Conway Holt-Harris for Standard Accident Insurance Company appearing specially.
In proceedings supplementary to judgment pursuant to article 45 of the Civil Practice Act the judgment creditor applies for an order directing the Comptroller of the State of New York to pay it $8,159.75 out of funds due on public improvement contracts of the judgment debtors with public authorities of the State of New York. The director of office audit of the New York State Department of Audit and Control by affidavit states that "subject to any increase or decrease that may be made by supplemental agreement" the balance due on three contracts subject to the third-party subpoena served in conjunction herewith is $144,297.40. In the answering affidavit of the Attorney-General it is alleged that prior to the institution of this proceeding mechanic's liens for labor and material were filed with the Comptroller which total $220,502.88. It appears that none of these lienors has been made a party to this application. The Standard Accident Insurance Company which is listed as an "all moneys assignment" lienor has appeared specially and objects to the jurisdiction of the court for failure to serve the lienors, including itself, with notice of this proceeding.
Nothing in the moving papers indicates the genesis of the judgment creditor's claim, i.e., whether or not it arose out of the public improvement against which the funds are held. It is not listed among the lienors itemized in the Attorney-General's affidavit. Under these circumstances their rights are superior to those of the judgment creditor which has not disputed either the existence or the amounts of the liens. (Lien Law, § 25-a; Matter of Gombert v. Fuller Contr. Co., 285 App. Div. 1053; Cronford Co. v. Leopold Co., 189 Misc. 388, affd. 273 App. Div. 754, affd. 298 N.Y. 676; Matter of United States Cas. Co. v. Met Contr. Corp., 11 Misc.2d 492.)
Accordingly, the motion is denied and the stay contained in the subpoena is vacated.
Submit order.