Opinion
20808-2007.
Decided December 17, 2007.
ORDERED that the motion of the Petitioner for an order cancelling the lien filed by Debut Concrete General Construction, Inc. in the office of the Clerk of Suffolk County on January 4, 2007 against the property of the Petitioner M3GH Properties LLC, said property being located at 200 Wireless Boulevard, Hauppauge, New York, and further described as District: 0800; Section: 18100; Block: 0100; Lot: 001054; Book: 12182; Page: 390, is granted; and it is further
ORDERED that the Suffolk County Clerk is directed to immediately vacate and cancel the Mechanics Lien described above upon the payment of all required fees by the Petitioner.
LAZER, APTHEKER, ROSELLA YEDID, P.C., Attorney for Petitioner, Melville, New York.
AHERN AHERN, ESQS., Attorney for Respondent, Kings Park, New York.
The Petitioner, M3GH Properties, Inc., is the owner of the real property which is the subject of a mechanic's lien filed by the Respondent, Debut Concrete General Construction, Inc. in the sum of $96,048.00. On March 30, 2007, at the request of the Petitioner, the attorneys for M3GH caused to be served a notice pursuant to Lien Law § 59 by personal delivery of the notice to Lorraine Wilson, a person authorized to receive service on behalf of the Respondent. There is no allegation that the notice was improperly served or that the notice fails to comply with the requirements of the Lien Law .
Under the provisions of Lien Law § 59, the notice served required that the lienor commence an action to enforce its lien on or before April 30, 2007. When the Respondent failed to commence an action, the Petitioner properly commenced a proceeding by order to show cause to vacate and cancel the lien.
The failure of Debut Concrete General Construction, Inc. to commence an action on or before April 30, 2007, requires this Respondent to demonstrate the reasons the mechanic's lien should not be vacated for failure to comply with Lien Law § 59 (see, Marple v. Sorg , 230 AD2d 858, 646 NYS2d 543). If the action to foreclose the lien was not timely commenced by the lienor after service of a notice pursuant to Lien Law § 59, it is within the discretion of the Court to cancel the lien upon commencement of a proceeding to vacate the lien upon the real property.
The Respondent, in its response to the order to show cause, has not demonstrated that facts exist which would, as a matter of equity, warrant the denial of Petitioner's request for vacatur of the lien (see, Kushaqua Estates Inc. v. Bonded Concrete Inc ., 215 AD2d 993, 627 NYS2d 140; S A F La Sala Corp. v. S H 88th St. Assocs . 138 AD2d 241, 242, 525 NYS2d 206; see also, 16 Carmody Wait 2d § 97:144 ). While the Court will attempt to avoid prejudicing the rights of the lienor by a technical or strict interpretation of Lien Law § 59 (see, In re Cohen , 209 A.D. 415, 205 N.Y.S. 91), here the Respondent has not offered any excuse for its six month delay in commencing the action to foreclose the lien. The lienor has not denied that it was properly served by the Petitioner with a notice to commence an action in March of 2007. Further, the action to foreclose was not commenced until this motion to vacate the lien was served in October of 2007. While the Respondent will lose the lien on the property if the Court grants the motion to vacate the lien, the contract action may still be pursued and the Respondent is not without legal remedy for the monies allegedly owed to it (see, Miller v. T.A. J.M. General Contractors, Inc. , 124 Misc 2d 273, 476 NYS2d 449).
Under these circumstances, where the Respondent was properly served with the notice to commence the action, an action was not commenced for six months and then only when the Petitioner moved for dismissal, and there has been no attempt to show either a reason for the failure to commence an action to foreclose in a timely manner or the merit to the Respondent's underlying claim, the Court will exercise its discretion and grant the motion of the Petitioner to vacate and cancel the lien (see, Apollo Const. Development, Inc. v. Mazza , 13 Misc 3d 1, 822 NYS2d 357; In re Cancellation of a Mechanic's Lien on Real Property at 81 Brookline Avenue, Albany, New York 12203 , 3 Misc 3d 1105 (A), 787 NYS2d 676, 2004 NY Slip Op. 50426(U), N.Y.Sup. May 14, 2004).