Opinion
09-30-2015
In the Matter of Delilah RIGANO, etc., respondent, v. VIBAR CONSTRUCTION, INC., appellant. (Proceeding No. 1) In the Matter of Vibar Construction Corp., appellant, v. Fawn Builders, Inc., et al., respondents. (Proceeding No. 2).
Michael F.X. Ryan, Cortlandt Manor, N.Y., for appellants. Deren, Genett & Macreery, P.C., Katonah, N.Y. (John Brian Macreery of counsel), for respondents.
Michael F.X. Ryan, Cortlandt Manor, N.Y., for appellants.
Deren, Genett & Macreery, P.C., Katonah, N.Y. (John Brian Macreery of counsel), for respondents.
Opinion In a proceeding pursuant to Lien Law § 19(6), in effect, to summarily discharge a mechanic's lien (Proceeding No. 1), and a related proceeding pursuant to Lien Law § 12–a(2) to amend the notice of the subject lien dated March 23, 2010, nunc pro tunc, inter alia, to correct the name of the owner of the subject premises and to reflect that the lienor is named Vibar Construction Corp., instead of Vibar Construction, Inc. (Proceeding No. 2), Vibar Construction Corp., named in Proceeding No. 1 as Vibar Construction, Inc., appeals from (1) an order of the Supreme Court, Westchester County (Colabella, J.), entered September 8, 2011, in Proceeding No. 1, which, in effect, granted that branch of the motion of Delilah Rigano's decedent, Nick Rigano, which was for leave to reargue the petition in Proceeding No. 1, and, upon reargument, inter alia, granted the petition and discharged the mechanic's lien, and (2) an order of the same court in Proceeding No. 2, also entered September 8, 2011, which, in effect, granted that branch of the motion of Fawn Builders, Inc., and Delilah Rigano's decedent, Nick Rigano, which was for leave to reargue the petition in Proceeding No. 2, and, upon reargument, denied that petition. By decision and order dated September 11, 2013, this Court affirmed the orders of the Supreme Court, Westchester County (see Matter of Rigano v. Vibar Constr., Inc., 109 A.D.3d 829, 971 N.Y.S.2d 135 ). In an opinion dated December 16, 2014, the Court of Appeals reversed the decision and order of this Court, and remitted the matter to this Court “for consideration of issues raised but not determined on the appeal to [this] court” (Matter of Rigano v. Vibar Constr., Inc., 24 N.Y.3d 415, 421, 998 N.Y.S.2d 748 ). Justice Austin has been substituted for former Justice Lott (see 22 NYCRR 670.1 [c] ).
ORDERED that, upon remittitur from the Court of Appeals, the order entered September 8, 2011, in Proceeding No. 1 is modified, on the law, by deleting the provision thereof, upon reargument, granting the petition and discharging the mechanic's lien, and substituting therefor a provision adhering to the original determination denying the petition; and it is further,ORDERED that, upon remittitur from the Court of Appeals, the order entered September 8, 2011, in Proceeding No. 2 is modified, on the law, by deleting the provision thereof, upon reargument, denying the petition, and by substituting therefor a provision adhering to the original determination granting the petition and amending the notice of lien nunc pro tunc; and it is further,
ORDERED that one bill of costs is awarded to Vibar Construction Corp.
Under the circumstances of these proceedings, the Supreme Court properly, in effect, granted those branches of the respective motions in Proceeding Nos. 1 and 2 which were for reargument. However, the subject notice of lien was in substantial compliance with the requirements of the Lien Law, and the amendments sought would not prejudice any party (see Lien Law §§ 23, 12–a [2 ] ). Accordingly, upon reargument, the Supreme Court should have adhered to the original determinations granting Vibar Construction Corp.'s petition in Proceeding No. 2 to amend the notice of lien nunc pro tunc and denying the petition in Proceeding No. 1 to summarily discharge the lien (see Matter of Ross School [Eastern Woodworking Specialties], 291 A.D.2d 407, 736 N.Y.S.2d 895 ; Frederick Goldberg Architect, P.C. v. Dreamer Realty Corp., 278 A.D.2d 449, 717 N.Y.S.2d 914 ; Matter of Fane v. Armani Plumbing & Mech., 168 A.D.2d 143, 571 N.Y.S.2d 133 ). “In the absence of a defect upon the face of the notice of lien, any dispute regarding the validity of the lien must await trial of the foreclosure action” (Care Sys. v. Laramee, 155 A.D.2d 770, 771, 547 N.Y.S.2d 471 ; see Matter of Northside Tower Realty, LLC v Klin Constr. Group, Inc., 73 A.D.3d 1072, 899 N.Y.S.2d 900 ; Executive Towers at Lido v. Metro Constr. Servs., 303 A.D.2d 545, 756 N.Y.S.2d 461 ; Aaron v. Great Bay Contr., 290 A.D.2d 326, 736 N.Y.S.2d 359 ).
BALKIN, J.P., HALL, AUSTIN and SGROI, JJ., concur.