Matter of Prospect Hgts. Rising Corp. (Queensboro Elec. Contr. Corp.)
Annotate this CaseDecided on November 21, 2012
Supreme Court, Kings County
In the matter of the Application of Prospect Heights Rising Corp., Petitioner, For an Order Pursuant to Lien Law §19 (6) Discharging and Vacating a Certain Notices of Mechanic Lien, under Lien Law Filed by Queensboro Electrical Contracting Corp. the Real Property Located at 870 Pacific Street, Brooklyn, New York also known as Block 1130, Lot 34 on the Tax Map of the City of New York in the County of Kings, State of New York, Respondent.
6537/2012
Petitioner
Attorney for Plaintiff
Gary Rosen, Esq.
Gary Rosen Law Firm, P.C.
1010 Northern Boulevard, Suite 322
Great neck, New York 11021
(516) 437-3400
Attorney for Defendant
Michael P. Giampolis, Esq.
Law Offices of Michael P. Giampolis, P.C.
94 Willis Avenue
Mineola, New York 11501
(516) 739-5838
Francois A. Rivera, J.
By order to show cause and verified petition filed with the Kings County Clerk's office on March 26, 2012, petitioner Prospect Heights Rising Corp. (hereinafter Prospect) seeks an order pursuant to section 19 (6) of the Lien Law discharging a mechanic's lien filed against the real [*2]property known as 870 Pacific Street, Brooklyn, New York and also known as Block 1130, Lot 34 (hereinafter the subject property).
Respondent Queensboro Electrical Contracting Corp. (hereinafter Queensboro) has opposed the motion.
BACKGROUND
On October 5, 2011, Queensboro filed a notice of mechanic's lien with the Kings County Clerk's office in the sum of $42,490.00 against the subject property. On March 27, 2012, Prospect commenced the instant special proceeding by filing an order to show cause and verified petition. Prospect seeks an order discharging and vacating the aforementioned mechanic's lien.
MOTION PAPERS
Prospect's motion papers consist of an order to show cause, a verified petition, an affidavit of its vice president, three annexed exhibits and a memorandum of law. The first exhibit is a copy of the subject mechanic's lien. The second exhibit is a copy of an internet page from the New York City Department of Buildings pertaining to the subject property, which is described as a stop work order. The third exhibit is a receipt reflecting a deposit by Prospect of $43,831.05 to the Kings County Clerk's office in satisfaction of the subject mechanic's lien.
In opposition to the motion, Queensboro submitted an affidavit of its president, an affirmation of its counsel, four annexed exhibits labeled A through D and a memorandum of law. Exhibit A is described as two copies of executed contracts. Exhibit B is described as a copy of a check issued by Prospect to Queensboro. Exhibit C is an invoice from Queensboro. Exhibit D is described as "extra work order time sheets" kept by Queensboro.
Prospect replied with an affidavit of its vice president and five annexed exhibits. Exhibit 1 is a copy of an internet page from the New York City Department of Buildings which purports to demonstrate that work on the subject property was signed off on October 27, 2010. Exhibit 2 is a copy of the subject mechanic's lien showing a filing date of October 5, 2011. Exhibit 3 is an exact copy of exhibit 1. Exhibit 4 is an exact copy of exhibit D in Queensboro's opposition papers. Exhibit 5 is a copy of an internet page from the New York City Department of Buildings which purports to demonstrate that a stop work order on the subject property was rescinded.
LAW AND APPLICATION
A court has no inherent power to vacate or discharge a notice of lien except as authorized by Lien Law § 19 (6) (Matter of Northside Tower Realty, LLC v Klin Constr. Group, Inc., 73 AD3d 1072 [2nd Dept 2010] citing Dember Constr. Corp. v P & R Elec. Corp., 76 AD2d 540, 546 [2nd Dept 1980]). Lien Law § 19 provides the grounds for the discharge of a mechanic's lien interposed against a nonpublic improvement (id. citing Coppola Gen. Contr. Corp. v Noble House Constr. of NY, 224 AD2d 856, 857 [3rd Dept 1996]). Lien Law § 19(6) permits an owner of property to apply in the Supreme Court for an order summarily discharging a lien under certain statutorily specified circumstances (see, Luckyland (NY), LLC v Core Cont. Constr., LLC, 83 AD3d 1073 [2nd Dept 2011]). A motion to discharge a lien summarily, pursuant to Lien Law § 19 (6), must be denied where issues of fact exist ( see, 72 Pyrgi, Ltd. v Gkam Corp., 293 AD2d 387 [1st Dept 2002]).
Pursuant to Lien Law § 9, the notice of mechanic's lien shall state, among other information, "[t]he time when the first and last items of work were performed and materials were furnished" (Lien Law § 9 [6]). [*3]
Lien Law § 10(1) provides in pertinent part as follows:
Notice of lien may be filed at any time during the progress of the work and the furnishing of the materials, or, within eight months after the completion of the contract, or the final performance of the work, or the final furnishing of the materials, dating from the last item of work performed or materials furnished ...
Lien Law§ 19(6) provides in pertinent part as follows:
Where it appears from the face of the notice of lien that the claimant has no valid lien by reason of the character of the labor or materials furnished and for which a lien is claimed, or where for any other reason the notice of lien is invalid by reason of failure to comply with the provisions of section nine of this article, or where it appears from the public records that such notice has not been filed in accordance with the provisions of section ten of this article, the owner or any other party in interest, may apply to the supreme court of this state, or to any justice thereof, or to the county judge of the county in which the notice of lien is filed, for an order summarily discharging of record the alleged lien. ...
Prospect does not claim that the subject mechanic's lien was facially insufficient. Instead, Prospect takes issue with the timing of the filing of the lien. The mechanic's lien states that February 11, 2011 was the date that Queensboro performed the last item of work on the subject premise. Instead Prospect proffers internet documents purporting to show that the February 11, 2011 date is incorrect. In particular, Prospect relies on a purported stop work order issued by the New York City Building Department which ordered that all work on the subject property stop on or about October 23, 2010. Relying on the stop work order, Prospect contends that the mechanic's lien was filed contrary to the requirements of Lien Law § 10 (1) because it was filed more than eight months after the last item of work was actually performed and therefore should be discharged.
Where a mechanic's lien is not invalid on its face, it is not subject to summary discharge pursuant to Lien Law § 19 (6), and " any dispute regarding the validity of the lien must await trial thereof by foreclosure'" (Matter of Gold Dev. & Mgt., LLC, 74 AD3d at 1341 [2nd Dept 2010] quoting Matter of Northside Tower Realty, LLC v Klin Constr. Group, Inc., 73 AD3d at 1072-1073). Insofar as the lien provides within its four corners that the "last item of work" was performed on a date within the statutory eight-month period, the lien is not facially invalid under the provisions of Lien Law §10 and thus not subject to summary discharge under Lien Law § 19 (6) (see Matter of Lowe, 4 AD3d 476 [2nd Dept 2004]). Any proof that Queensboro furnished the last item of work more than eight months prior to the filing of the lien must be presented in an action by Queensboro to foreclose the mechanic's lien.
This court finds that the subject mechanic's lien is facially valid and thus not subject to summary dismissal.
As a result, the instant petition is denied and this proceeding is dismissed.
The foregoing constitutes the decision and order of the court.
Enter____________________________________x
J.S.C. [*4]
Enter forthwith____________________________________x
J.S.C.
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