Opinion
April 21, 1965
George Weisbrod for petitioner.
Goldman, Horowitz Cherno ( Stanley Thaler of counsel), for respondent.
Petitioner, who is the general contractor engaged by the owner for the construction of a public improvement, applies for discharge of a mechanic's lien on the ground respondent is not a person entitled to file a notice of lien under section 12 Lien of the Lien Law.
Respondent furnished to Otten Root, Inc., certain material consisting of glazed block which has been utilized on a school building being erected by petitioner. Respondent's notice of lien states Otten Root, Inc., was a subcontractor of Bartley Brothers Construction Corporation, and that the latter was a subcontractor of petitioner. Respondent's status is that of a materialman of a "sub-sub-contractor".
Section 12 Lien of the Lien Law limits the class of persons entitled to file a lien against a public improvement to those performing labor for or furnishing materials to the contractor of his immediate subcontractors ( Wynkoop v. People, 1 A.D.2d 620, affd. 4 N.Y.2d 892. See, also, Dorn v. Johnson Corp., 16 A.D.2d 1009). In this case, the class of persons who qualified as lienors ended with Otten Root, Inc., the corporation with whom respondent dealt. Respondent falls outside the statutorily restricted field of persons who qualify as lienors, and since such defect appears on the face of the notice of lien, it may be summarily discharged as a nullity (Lien Law, § 21, subd. 7; Matter of Hendrickson Bros. v. Wynkoop, 2 A.D.2d 688; Burry Colonial Corp. v. A.E. Ottaviano, Inc., 21 Misc.2d 814). The petition is granted.