Opinion
December 10, 1953.
Mortgage foreclosure action wherein plaintiff, who had reached settlement with mortgagor, moved to discontinue action and cancel the lis pendens. The defendant, a mechanic's lienor, opposed the application. The Supreme Court, Queens County, Special Term, Pette, J., held that upon lienor's serving an answer asserting his lien within appointed time, lis pendens would be allowed to remain of record until lienor's claim was determined.
Order in accordance with opinion.
Bernard Mangiaracina, Brooklyn, for plaintiff.
Warren L. Schnur, New York City, for defendant Charleston Chemicals, Inc. Charles M. Graham, Brooklyn, for defendant Stephen O'Rourke.
Plaintiff in an action to foreclose a mortgage on real property moves to discontinue the action and to cancel of record the lis pendens filed therein.
The lis pendens was filed on July 11, 1951. On October 6, 1953, plaintiff and the defendant owner entered into a stipulation of settlement in open court.
[1, 2] Sole opposition to this application comes from defendant O'Rourke, a mechanic's lienor, who bases his opposition upon the ground that "the statute of limitations will have expired for the renewal of a mechanic's lien," which is the fact. Lien Law, § 17. Said defendant was served with process and was named in the lis pendens in question. Such being the case, his mechanic's lien was continued without further act on his part, Lien Law, § 19(2); Lobbett v. Galpin, 228 App.Div. 65, 239 N.Y.S. 76; In re Long Island Properties, 2 Cir., 143 F.2d 349, and 351, and the lis pendens enured to his benefit as well as to that of the plaintiff. See Gee-Dee Painting Co. v. Robert Metrick Co., Sup., 117 N.Y.S.2d 242. True, defendant O'Rourke did not inter-pose an answer, but merely served a notice of appearance in which he waived service of all papers except with reference to surplus money proceedings and notice of sale. Failure to answer in this action to foreclose a realty mortgage, however, did not result in a waiver of the mechanic's lien, although such a waiver would have resulted had this action been one to foreclose another mechanic's lien. Lien Law, § 44, subd. 5; Lobbett v. Galpin, supra.
Justice requires that defendant O'Rourke be given an opportunity to enforce his mechanic's lien. The attorney for the defendant owner apparently recognizes this for he states, in a reply affidavit (p. 3, par. 9), as follows:
"I have advised Mr. Graham [attorney for defendant O'Rourke] that if his client desires to institute an action on his alleged claim, I am willing to accept service on behalf of my client * * *."
The motion is, accordingly, disposed of as follows: Defendant O'Rourke is granted leave to serve an answer on or before January 8, 1954, setting forth therein a foreclosure of his mechanic's lien. After joinder of issue by defendant owner, an order may be submitted on this motion providing for the discontinuance of this action as between plaintiff and defendant owner, the lis pendens to remain of record until the claim of defendant O'Rourke has been determined. Should defendant O'Rourke fail to serve his answer within the time specified, an order may be submitted reciting said default and providing for the granting of this motion in all respects.
A copy of this memorandum will be mailed by the clerk to the Attorney General and to each of the parties who have appeared on this application.
Proceed on notice.