TEKNIC CORP v. DRAKE AVENUE MARINE INC (1997)

Appeal from the order is unanimously dismissed.

Judgment unanimously affirmed without costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).  The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1] ).

Plaintiff is the owner of a 42-foot 1971 Uniflight boat.   Beginning in 1991, plaintiff entered into annual agreements with defendant for slip space at defendant's marina.   When plaintiff failed to make its annual payments for the 1994/1995 season, defendant issued a Notice of Lien and Sale pursuant to Lien Law § 184, scheduling the sale of the boat on April 25, 1995.   This lien was cancelled upon plaintiff's payment of $2,000 to defendant.   Thereafter, defendant issued another Notice of Lien and Sale pursuant to Lien Law § 184, scheduling the sale of the boat on August 15, 1995.   Plaintiff moved by order to show cause to cancel the lien.   The court below granted plaintiff's motion, and entered a judgment thereon, cancelling the lien and directing defendant to turn over possession of the boat to plaintiff.   We affirm the judgment.

 In Albanese v. Cow Bay Marine Service, 155 Misc.2d 232, 233, 598 N.Y.S.2d 662 this court held that Lien Law § 184 “presupposes the existence of a bailment as a condition precedent to the applicability of the section and the ability to place a lien on the vessel.”   Although the standard contract submitted by defendant contains hybrid language referring to both “Rental and storage”, the essential character of the relationship existing between the parties is that of landlord and tenant as the court below properly determined.   There is no indication in this record that plaintiff's delivery of his boat at defendant's marina was such as to amount to a relinquishment of plaintiff's exclusive control and dominion over the boat (see generally, 9 N.Y.Jur.2d, Bailments and Chattel Leases, § 13).   It is in fact uncontroverted upon this record that until defendant pulled plaintiff's boat out of its slip space for non-payment of the annual slip fee, the boat was “continuously used by [plaintiff's president] almost on a daily basis, coming and going at will.”   Defendant's reliance on YS Consulting Group Ltd. v. Knutson's Marina, 134 A.D.2d 587, 522 N.Y.S.2d 2, to support its argument that a bailment existed is misplaced since the recitation of the facts in that case clearly indicates that plaintiff YS Consulting Group Ltd., unlike the plaintiff herein, delivered the boat to defendant for “storage and routine maintenance.”

 In the absence of a bailment there is no basis to enforce a lien under section 184 of the Lien Law and defendant would be precluded under 46 USC § 31307 from litigating or enforcing the lien in a State court proceeding (see, 2 Benedict, Admiralty §§ 37, 41 [7th ed];  Albanese v. Cow Bay Marine Service, supra at 234, 598 N.Y.S.2d 662).   We note that to the extent defendant's assertion of a lien is for the period after it pulled plaintiff's boat out of its slip space for non-payment of the slip fee, it is precluded from doing so under section 184 of the Lien Law for the reason that the statute clearly requires the “consent” of the owner of the boat.   Defendant here has not disputed plaintiff's allegation that no such consent was given to defendant.

MEMORANDUM.