JAMES ZIZZI CONTRACTING CORP v. 115 FLYING POINT LLC 115 LLC

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

JAMES V. ZIZZI CONTRACTING CORP., respondent, v. 115 FLYING POINT, LLC, a/k/a 115 Flying Point Road, LLC, et al., appellants, et al., defendants.

Decided: March 27, 2007

STEPHEN G. CRANE, J.P., GLORIA GOLDSTEIN, STEVEN W. FISHER, and ROBERT A. LIFSON, JJ. Paul W. Meyer, Jr., Yonkers, N.Y., for appellant 115 Flying Point, LLC, a/k/a 115 Flying Point Road, LLC. Bennett & Reed, Southampton, N.Y. (John J. Bennett and Kimberly A. Judd of counsel), for respondent.

In an action to foreclose a mechanic's lien, the defendant 115 Flying Point, LLC, a/k/a 115 Flying Point Road, LLC, appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated January 6, 2006, as denied, in effect, as academic, that branch of its motion, made jointly with the defendants Barbara Sullivan and Christina Magidson, which was to discharge, as defective, a mechanic's lien and granted that branch of the plaintiff's cross motion which was for leave to amend the notice of mechanic's lien, and (2) from stated portions of a judgment of the same court entered February 23, 2006, upon the order;  and the defendants Barbara Sullivan and Christina Magidson also appeal from the same order and judgment.

ORDERED that the appeals by the defendants Barbara Sullivan and Christina Magidson are dismissed as abandoned (see 22 NYCRR 670.8[e] );  and it is further,

ORDERED that the appeal by the defendant 115 Flying Point, LLC, a/k/a 115 Flying Point Road, LLC, from the order dated January 6, 2006, is dismissed;  and it is further,

ORDERED that the judgment entered February 23, 2006, is affirmed insofar as appealed from by the defendant 115 Flying Point, LLC, a/k/a 115 Flying Point Road, LLC;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff payable by the defendant 115 Flying Point, LLC, a/k/a 115 Flying Point Road, LLC.

The appeal by the defendant 115 Flying Point, LLC, a/k/a 115 Flying Point Road, LLC, from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the 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 the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

The defect in the verification in the notice of mechanic's lien filed by the plaintiff is subject to amendment (see Matter of Teitler v. McDermott & McDonald, 306 N.Y. 953, 120 N.E.2d 222, affg. 282 App.Div. 953, 125 N.Y.S.2d 764;  Lien Law § 12-a[2] ).   Accordingly, the Supreme Court properly granted that branch of the plaintiff's cross motion which was for leave to amend the notice of mechanic's lien, and properly denied, in effect, as academic, that branch of the motion which was to discharge, as defective, the mechanic's lien.

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