Metro Interior Distribs. Corp. v Hynes

[*1] Metro Interior Distribs. Corp. v Hynes 2013 NY Slip Op 51558(U) Decided on September 20, 2013 District Court Of Nassau County, First District Hirsh, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 20, 2013
District Court of Nassau County, First District

Metro Interior Distributors Corp., Plaintiff,

against

Todd Hynes, LISA HYNES, DEAN NEUMANN d/b/a BAUHAUS CONSTRUCTION a/k/a BAUHAUS GENERAL CONSTRUCTION CO., and "JOHN DOE NO. 1" through "JOHN DOE No. 2", said names being fictitious and intended to designate those persons or unknown persons or entities who have claims under the Real Property being foreclosed herein, Defendant.



CV-018994-11



Tedd Blecher, Esq. - Attorney for the Plaintiff

Dean Neumann, Pro se

Todd Hynes, Pro se

Lisa Hynes, Pro se

Fred J. Hirsh, J.

The following named papers numbered 1 - 2

submitted on this motion on July 12, 2013

Papers NumberedNotice of Motion and Affidavits Annexed1-2

Order to Show Cause and Affidavits Annexed

Affirmation in Opposition

Replying Affidavits

Plaintiff Metro Interior Distributors Corp. ("Metro") moves to cancel a Notice of Pendency filed in connection with an action to foreclose on a mechanics lien filed against real property owned by the defendant's Todd Hynes and Lisa Hynes (collectively "Hynes").

BACKGROUND[*2]

Metro provided building materials to co-defendant Dean Neumann d/b/a Bauhaus Construction a/k/a Bauhaus General Construction ("Neumann") for construction work performed on Hynes single family home located in Syosset.

When Neumann did not make full payment for the building materials supplied by Metro, Metro filed a mechanics lien with the County Clerk, Nassau County on June 7, 2010 asserting a mechanics lien against Hynes property for the balance due for the building materials sold to Neumann.

Neumann did not discharge or bond the lien.

On May 26, 2011, Metro commenced this action in District Court, Nassau County seeking to fix and foreclose on the mechanics lien. On May 26, 2011, when the action to foreclose on the mechanics lien was commenced in District Court, Metro filed a Notice of Pendency with the County Clerk, Nassau County. The Notice of Pendency contains a Supreme Court, Nassau County caption and was filed under Supreme Court, Nassau County Index No. 7836/11.

All thought Neumann and Hynes were served with the summons and complaint in the within action, they did not appear. As a result, Metro entered a default judgment against Neumann and Hynes in the sum of $5140.88 on January 12, 2012.

Although the judgment was entered against all of the defendants, the transcript of judgment docketed with the Nassau County Clerk indicates the judgment was entered solely against Dean Neumann d/b/a Bauhaus Construction.

The within action was settled in August 2012. Metro filed a satisfaction of judgment and satisfaction of mechanics lien with the Nassau County Clerk on September 24, 2012. Although the judgment was entered in District Court, the satisfaction of judgment has not filed with the clerk of the District Court.

The parties have also executed a stipulation consenting to the canceling of the Notice of Pendency and the issuance and entry of an order cancelling the Notice of Pendency. Metro does not state whether it filed or attempted to file the stipulation cancelling the Notice of Pendency with the Nassau County Clerk and if it did, what happened.

Metro now moves in this Court for an order directing the Nassau County Clerk to cancel the Notice of Pendency.

DISCUSSION

CPLR 6514(a) requires the court, upon motion of any party aggrieved, to issue an order canceling a notice of pendency if the action has been settled. CPLR 6514(a) does not state which court has the jurisdiction to issue such an order.

CPLR 6501 permits a party to file a notice of pendency, "... in any action in a court of the state...in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property, except in a summary proceeding brought to recover possession of real property."

A notice of pendency is filed as part of the action to foreclose on a mechanics lien to provide constructive notice to the public of the plaintiff's rights in regard to the property and to advise one who purchases, takes title to or lends on the property it does so subject to the rights of the lien holder. McKinney's CPLR Practice Commentaries CPLR 6501.

An action to foreclose on a mechanics lien is an action in equity. Bernardo v. Steelco, Div of Metropolitan Steel Industries, Inc., 115 Misc 2d 1021 (Sup.Ct. Nassau Co. [*3]1982). The District Court has virtually no equity jurisdiction. See, Siegel, New York Practice 5th §20. The District Court does not have jurisdiction over any actions relating to title, possession, use or enjoyment of real property except for summary proceedings. See, Uniform District Court Act Article 2; and Uniform District Court Act § 204.

New York State Constitution, Article 6, §11(a) grants the county court jurisdiction and New York State Constitution Article 6, §15(b) grants the New York City Civil Court jurisdiction over actions to foreclose on mechanics liens where the amount sought to be recovered or the value of the property does not exceed $25,000. The Supreme Court, as a court of general jurisdiction, has jurisdiction over action to foreclose on mechanics liens regardless of the amount of the lien or the value of the property. McKinney's Const. Art. 6, §7(a).

New York State Constitution Article 6, §16(d) provides the District Court shall have such jurisdiction as provided by law. This provision of the New York State Constitution permits the legislature to grant the District Court jurisdiction over actions to foreclose on mechanics liens where the amount sought to be recovered or the value of the property is less than $15,000. However, the Uniform District Court Act does not provide the District Court with jurisdiction over actions to foreclose on a mechanics lien. Compare, New York City Civil Court Act §203(e) which specifically grants the New York City Civil Court jurisdiction over "an action for the establishment, enforcement or foreclosure of a mechanic's lien on real property where the lien asserted does not, at the time the action is commenced, exceed $25,000" with Uniform District Court Act §203 which limits the jurisdiction of the District Court to "...an action for the establishment of a mechanic's lien on real property...and to recover a personal judgment for the amount due, where the lien asserted does not, at the time the action is commenced, exceed $15,000."

This court cannot grant itself jurisdiction over an action to foreclose on a mechanic's lien where the legislature in adopting the Uniform District Court Act omitted provisions granting the court such jurisdiction and could have easily included it. See, McKinney's Statutes §74. The legislature could have granted the District Court jurisdiction over an action to foreclose on a mechanics lien where the amount of the lien or the value of the property was less than $15,000 but did not do so.

The District Court lacks subject matter jurisdiction over an action to foreclose on a mechanics lien. Westchester Decorators, Inc. v. Perazzo, 182 Misc 2d 806 (App Term 2nd Dept. 1999); Fedoryk v. Fort Salonga Management Co., Inc., (District Ct. Suffolk Co. 1968); 29 NY Jur 2nd Courts and Judges §842; and 76A NY Jur 2d Mechanics Liens §186. The jurisdiction of the District Court is limited to actions to establish a mechanics lien and to recover a personal judgment for the amount due. 76A NY Jur2d Mechanics Liens §186; and Uniform District Court Act §203.

Subject matter jurisdiction goes to the authority of the court to hear an action. Siegel, New York Practice 5th §8. Lack of subject matter jurisdiction is a non-waivable defect. Davis v. State, 64 AD3d 1197 (4th Dept. 2009)Lack of subject matter jurisdiction may be raised at any time by either the court or a party, and if the court determines it lacks subject matter jurisdiction, it must dismiss the action. Robinson v. Oceanic Steam Nav. Co., 112 NY 315 (1889); and MHS Venture Management Corp. v. Utilisave, LLC, 63 AD3d 840 (2nd Dept. 2009).

Since the District Court did not have subject matter jurisdiction over the action to [*4]foreclose on a mechanics lien, the District Court lacks subject matter jurisdiction over matters that are ancillary to an action to foreclose on a mechanics lien, such as a notice of pendency. Since the court lacks subject matter jurisdiction over the proceeding for the relief requested in this motion is sought, the court cannot issue an order directing the cancellation of the notice of pendency filed against the Hynes property.

Additionally, the District Court lacks jurisdiction to order the county clerk to take action regarding the notice of pendency. The county clerk is the clerk of the Supreme Court, not the District Court. See, McKinney's Cons. Ar. 6, §6(e); CPLR 105(e); McKinney's CPLR Practice Commentaries C304:2. The District Court has its own clerk. See, Uniform District Court Act §105(a).

For the foregoing reasons, plaintiff's motion for an order directing the County Clerk to cancel the Notice of Pendency filed in this action is denied without prejudice with leave to re-make the motion in the proper court.

SO ORDERED:

Hon. Fred J. Hirsh

District Court Judge

Dated: September 20, 2013