Opinion
September 4, 1959
Wruck Donnelly for John N. Tracy and another, defendants.
Benjamin J. Murphy for plaintiff.
The defendants, John N. Tracy and Elizabeth F. Tracy, are the owners of premises against which plaintiff on August 4, 1958, filed a mechanic's lien. On July 27, 1959 plaintiff filed a lis pendens and the summons and complaint in the present action, together with an affidavit of service on the defendant, Mil-Bec Construction Corp., the contractor. The summons and complaint were not served on the owners until August 10, 1959.
The owners move to dismiss the complaint on the ground that the action was not commenced against them within one year from the date of filing the lien as required by section 17 Lien of the Lien Law.
That section provides that a mechanic's lien expires unless within one year "an action is commenced to foreclose the lien, and a notice of the pendency of such action * * * is filed with the county clerk". (Italics supplied.)
As to mechanic's liens section 120 of the Civil Practice Act has no application. The procedure is controlled by the Lien Law provisions. To keep the lien alive an action must be commenced within one year of the filing of the notice of the lien, and an action is commenced by the service of a summons on the defendant. Service of the summons and complaint on the contractor does not constitute a commencement of the action against the owners. ( Martens v. O'Neill, 131 App. Div. 123.)
The motion to dismiss the complaint is granted. The notice of pendency will also be cancelled.
Submit order.