Matter of T.A. Maloney Contr. v. William E. Blume

Full title: In the Matter of T.A. MALONEY CONTRACTING CORP., Petitioner, v. WILLIAM E…

Court: Supreme Court, Special Term, Queens County

Date published: Feb 10, 1976

85 Misc. 2d 838 (N.Y. Sup. Ct. 1976)

380 N.Y.S.2d 585

Opinion

February 10, 1976

Dattoma Salvo for petitioner.

McDonough Schneider Marcus Cohn Tretter for respondent.

EDWIN KASSOFF, J.

Petitioner moves to discharge two mechanic's liens filed respectively on December 20, 1974 and June 9, 1975.

Inasmuch as more than six months have elapsed since the filing of the first notice of lien, it has been discharged by lapse of time (Lien Law, § 21, subd 2, par [a]). The provision for expiration is self-executing and requires no order of cancellation. (Triple Cities Constr. Co. v Dan-Bar Contr. Co., 285 App. Div. 299, affd 309 N.Y. 665.) Therefore, petitioner's application with respect to the first lien filed is denied as moot.

Petitioner's contention, that the second lien is defective and should be discharged because said lien was filed while the first lien was valid and still in effect, is without merit. There is nothing in section 12 Lien of the Lien Law which provides that successive liens may not be filed for the same work as long as the second lien is filed within the statutory period. (Berger Mfg. Co. v City of New York, 206 N.Y. 24; Clarke v Heylman, 80 App. Div. 572.)

Petitioner further contends that the second lien is void for willful exaggeration (Lien Law, § 39). The fact of willful exaggeration may be established only in an action or proceeding to enforce a mechanic's lien rather than on affidavits submitted on a motion to discharge a lien. The right to urge that a lien is void for willful exaggeration is always reserved for trial. (Matter of Upstate Bldrs. Supply Corp. [Maple Knoll Apts.], 37 A.D.2d 901; Durand Realty Co. v Stolman, 197 Misc. 208, affd 280 App. Div. 758.)

The courts have no inherent power to summarily cancel or discharge mechanic's liens for public improvements on grounds other than those specified in the Lien Law. (Supreme Plumbing Co. v Seadco Bldg. Corp., 224 App. Div. 844.) Petitioner has failed to set forth grounds that fall within the parameters of the statute. Accordingly, the application is denied with respect to the lien filed June 9, 1975 and the petition is dismissed.