IN RE: Bridge View Tower (2010)

Supreme Court, Appellate Division, Second Department, New York.

IN RE: Bridge View Tower, LLC, appellant, v. Roco G.C. Corp., respondent.

2009-02169 (Index No. 28093 /08)

Decided: January 12, 2010

MARK C. DILLON, J.P. FRED T. SANTUCCI ANITA R. FLORIO L. PRISCILLA HALL, JJ.

Estrin, Benn & Lane, LLC, New York, N.Y. (Stephen M. Honan of counsel), for appellant. Rabinowitz & Galina, Mineola, N.Y. (Gayle A. Rosen of counsel), for respondent. The petitioner was the owner of certain real property located on Bridge Street in Brooklyn (hereinafter the subject property). The respondent supplied and installed plumbing and fire safety equipment for the petitioner at the subject property, which was being converted into a condominium development. On February 6, 2008, the petitioner filed a condominium declaration with regard to the subject property. On or about June 19, 2008, the respondent filed a mechanic's lien against the subject property. The lien described the property as being located at “189 Bridge Street” in Brooklyn. The petitioner commenced this proceeding pursuant to Lien Law § 19(6) to summarily vacate and discharge the mechanic's lien, claiming that the notice of lien failed to adequately describe the property pursuant to Lien Law § 9(7). The respondent moved for leave to amend the notice of lien pursuant to Lien Law § 12-a to properly reflect the blocks and lots set forth in the condominium declaration against which the lien was to apply, “less any units sold prior to the filing” of the notice of lien. In a proposed amended lien, the respondent included in the description of the property individual lot numbers corresponding to lots created in the condominium declaration, but omitted several of the units therefrom. The Supreme Court denied the petition and granted the respondent's motion. We reverse.

Submitted-November 24, 2009

DECISION & ORDER

In a proceeding pursuant to Lien Law § 19(6) to summarily vacate and discharge a mechanic's lien, the petitioner appeals from an order of the Supreme Court, Kings County (F.Rivera, J.), dated January 9, 2009, which denied the petition and granted the respondent's motion to amend the notice of lien.

ORDERED that the order is reversed, on the law, with costs, the petition to vacate and discharge the lien pursuant to Lien Law § 19(6) is granted, and the respondent's motion to amend the notice of lien is denied.

“The description of the property in the notice of lien created a blanket lien which is not valid as against the individual units, including the unsold units retained by the petitioner, or the common elements of the condominium” (Matter of Westage Towers Assoc. v ABM A.C. & Refrig., 187 A.D.2d 600, 600 [internal quotation marks omitted]; see Lien Law § 9[7]; Real Property Law § 339-l[1]; Northeast Restoration Corp. v. K & J Constr. Co., 304 A.D.2d 306, 307; Matter of M.M.E. Power Enters. [Wolf & Son Enters.], 205 A.D.2d 631, 632; Matter of Atlas Tile & Marble Works [S & H 88th St. Assoc.], 191 A.D.2d 247, 248; Matter of City of Albany Indus. Dev. Agency v DeGraff-Moffly/Gen. Contrs., 164 A.D.2d 20, 22; Advanced Alarm Tech. v. Pavilion Assoc., 145 A.D.2d 582, 584; cf. Santucci Constr. Corp. v. Errico, 242 A.D.2d 696, 697). Moreover, “Real Property Law § 339-l(1) prohibits the creation of a lien against the common elements of a condominium, subsequent to the recording of a condominium declaration, without the unanimous consent of the unit owners” (Matter of M.M.E. Power Enters. [Wolf & Son Enters.], 205 A.D.2d at 632). “Since the ․ lien ․ included the condominium's common areas in the description of the property subject to the [lien] without the unanimous consent of the [owners], the [lien was] invalid under Real Property Law § 339-l(1)” (id.; see Matter of Atlas Tile & Marble Works [S & H 88th St. Assoc.], 191 A.D.2d at 248; Matter of Westage Towers Assoc. v ABM A.C. & Refrig., 187 A.D.2d at 600; Matter of City of Albany Indus. Dev. Agency v DeGraff-Moffly/Gen. Contrs., 164 A.D.2d at 22; Advanced Alarm Tech. v. Pavilion Assoc., 145 A.D.2d at 584).

Here, because the lien was invalid, it was subject to summary vacatur and discharge pursuant to Lien Law § 19(6). With regard to the respondent's motion for leave to amend the notice of lien pursuant to Lien Law § 12-a, that section “ ‘presupposes the existence of a valid lien and may not be construed to revive an invalid notice of lien’ ” (Northeast Restoration Corp. v. K & J Constr. Co., 304 A.D.2d at 307, quoting Matter of Atlas Tile & Marble Works [S & H 88th St. Assoc.], 191 A.D.2d at 248; see Santucci Constr. Corp. v. Errico, 242 A.D.2d at 697). Thus, the Supreme Court erred in denying the petition and in granting the respondent's motion for leave to amend the notice of lien.

DILLON, J.P., SANTUCCI, FLORIO and HALL, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Was this helpful?

Why was this helpful?

Easy to understand

Solved my problem

Other

Why was this not helpful?

Missing the information I need

Too complicated / too many steps

Out of date

Other

Thank you for your feedback!

Welcome to FindLaw's Cases & Codes

A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.

Go To Learn About The Law