FLOORS INC v. ST PAUL MERCURY INSURANCE CO (2006)

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered November 18, 2005, which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment or for leave to amend the complaint, unanimously affirmed, with costs.

 This action on a bond discharging a public improvement lien was commenced against the wrong surety, and leave to substitute the correct issuer of the bond was properly denied because the proposed amendment was palpably lacking in merit (see Thompson v. Cooper, 24 A.D.3d 203, 205, 806 N.Y.S.2d 32 [2005] ).   The action was barred by the inclusive language of the release in a related action (cf. Maxwell Partners, L.L.C. v. The Bldg. Studio, LLP, 32 A.D.3d 321, 820 N.Y.S.2d 253 [2006] ) on the underlying contract debt and payment bond (see generally Global Minerals & Metals Corp. v. Holme, 35 A.D.3d 93, 96-97, 824 N.Y.S.2d 210, 2006 WL 2807013, *4 [2006] ).   Moreover, the underlying lien, which is required for an action on a discharge bond, had been extinguished as a result of plaintiff's failure to commence an action to foreclose, file a notice of pendency or obtain an extension of the lien within the required time period (see Tri-City Elec. Co., Inc. v. People, 96 A.D.2d 146, 150, 468 N.Y.S.2d 283 [1983], affd. 63 N.Y.2d 969, 483 N.Y.S.2d 990, 473 N.E.2d 240 [1984];  Matter of Bat-Jac Contr., Inc. v. Italia Constr. Co., 262 A.D.2d 314, 693 N.Y.S.2d 603 [1999] ).   We note that the discharge bond referenced Lien Law § 21(5)(a)(see Scaccia Concrete Corp. v. Hartford Fire Ins. Co., 212 A.D.2d 225, 230, 628 N.Y.S.2d 746 [1995] ) and expressly conditioned the surety's obligation thereunder to a judgment in an action on the lien, rather than on, as relied upon by plaintiff, the underlying contract.   We decline to consider plaintiff's contention regarding its proposed Lien Law article 3-A claim, which is improperly raised for the first time at this juncture (see Recovery Consultants, Inc. v. Shih-Hsieh, 141 A.D.2d 272, 276, 534 N.Y.S.2d 374 [1988] ).