Opinion
101755/2008.
December 7, 2009.
Motion sequence 003 and 004 are consolidated for disposition and decided in accordance with this memorandum decision.
This is an action to recover fees for renovations undertaken at defendants' cooperative apartment.
On January 29, 2009, this court granted defendants' motion to dismiss plaintiff's first cause of action seeking to foreclose on the mechanic's lien filed in this action, pursuant to New York Lien Law § 17, on the grounds that the owner of a cooperative owns shares in the corporation, and not the fee itself, and that such an enforcement proceeding should be brought against the owner, in this case, the corporation, 118 Tenants Corp. (118 Tenants), and not the named defendants. However, this court declined to grant the portion of defendants' motion seeking an order cancelling the mechanic's lien. Plaintiff's motion to amend the complaint and notice of pendency, pursuant to CPLR 3025, to add 118 Tenants as a defendant was also denied with leave to renew, because plaintiff failed to submit a proposed amended complaint.
Defendants now move, pursuant to CPLR 2221, for leave to reargue the portion of the motion seeking an order cancelling the mechanic's lien. Plaintiff renews its motion to amend its complaint and notice of pendency.
Defendants' motion to reargue is granted. The mechanic's lien should have been cancelled, because the lien expired before this action was commenced. Plaintiff filed the mechanic's lien on January 31, 2006, and then filed an extension on January 2, 2007. Originally, this court held that the one-year lien extension expired on January 31, 2008, calculating the one-year extension from the date that the original lien was filed. However, after careful review of New York Lien Law § 17 and case law, the extension of the lien actually expired on January 2, 2008, one year from the filing date of the extension. See New York Lien Law § 17; Naber Electric Corp. v Hawthorne Cedar Knolls Union Free School District, 49 AD3d 698 (2nd Dept 2008) (holding that the extension of the mechanic's lien filed on August 8, 2006 expired on August 8, 2007, one year after the filing of the extension). Thus, plaintiff's commencement of this action on January 29, 2008 was untimely, and the mechanic's lien is cancelled.
Plaintiff argues that defendants' motion for reargument is untimely, because there is a 30-day period for making reargument motions. However, this 30-day period runs from service of notice of entry of the decision in question, and there is no evidence that such notice was ever served. See CPLR 2221 (d) (3).
Plaintiff moves to amend its complaint to add 118 Tenants Corp. as a defendant. Plaintiff argues that, since this court dismissed its cause of action seeking foreclosure of the mechanic's lien based on the fact that 118 Tenants are actually the fee owners, it should be able to add them as a defendant. However, this issue is moot. The mechanic's lien is cancelled, because the filing of this action to foreclose the mechanic's lien is untimely. Thus, such would be dismissed against 118 Tenants as well.
The court notes that even though the mechanic's lien expired before this action was commenced, the plaintiff can still move forward with its breach of contract claim against the defendant. 240-35 Assocs. v Major Builders Corp., 234 AD2d 234, 234-35 (1stDept 1996).
Accordingly, it is
ORDERED that defendants Edward Donohue and Niki Donohue a/k/a Niki Miliotis' motion to reargue is granted; and it is further
ORDERED that, upon reargument, the court vacates the portion of its January 29, 2009 order denying cancellation of the mechanic's lien filed in this action; and it is further
ORDERED that the mechanic's lien is cancelled; and it is further
ORDERED that plaintiff Teamwork Contracting, Inc.'s motion to amend its complaint and notice of pendency, pursuant to CPLR 3025, to add 118 Tenants as a defendant is denied as moot; and it is further
ORDERED that the remaining action continues.
Counsel for the parties are directed to contact Part 15 for a preliminary conference date.