Opinion
December 29, 1993
Appeal from the Supreme Court, Onondaga County, Hayes, J.
Present — Denman, P.J., Callahan, Pine, Doerr and Boehm, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court abused its discretion in severing plaintiff's mechanic's lien cause of action from the breach of contract causes of action and in denying defendant's motion for a change of venue with respect to the related causes of action for breach of contract. Because a mechanic's lien is an encumbrance on real property (see, Matter of Niagara Venture v Sicoli Massaro, 77 N.Y.2d 175, 180), an action to foreclose such lien must be brought in the county in which the real property is located (see, CPLR 507; Reichenbach v Corn Exch. Bank Trust Co., 249 App. Div. 539, 541). Thus, the court properly granted plaintiff's motion for a change of venue on the cause of action to foreclose the mechanic's lien on the real property (see, Sambur v Fidelity Deposit Co., 46 N.Y.S.2d 370, 373; see also, Warriner Smith Util. v Intercoast Ellenville Assocs., 85 Misc.2d 495, 496).
Because the same facts and law underlie plaintiff's breach of contract causes of action and its lien foreclosure cause of action, those causes of action should not have been severed. The causes of action all arise out of the performance of the subcontract, and, presumably, the same witnesses will testify at both trials. Under those circumstances, it would be a waste of judicial time and resources to require two separate trials. Thus, we conclude that the interest of justice requires one trial to resolve all causes of action (see, Paddock Constr. v Thomason Indus. Corp., 133 A.D.2d 20, 23; Cafil Homes v Ihasz, 104 A.D.2d 961; Taylor Jennings v Bellino Bros. Constr. Co., 57 A.D.2d 42, 46; Fulmer v Sovocool, 26 A.D.2d 889).
Thus, we modify the order appealed from by vacating that part of the first ordering paragraph severing the fourth cause of action and by granting defendant's motion for a change of venue to Tompkins County.