Anron Air Systems, Inc. v. Columbia Sussex Corp.

• Decision Date: 14 March 1994
• Parties: ANRON AIR SYSTEMS, INC., Respondent, v. COLUMBIA SUSSEX CORPORATION, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 49

609 N.Y.S.2d 49

202 A.D.2d 460

ANRON AIR SYSTEMS, INC., Respondent, v. COLUMBIA SUSSEX CORPORATION, Appellant.

Supreme Court, Appellate Division,

Second Department.

March 14, 1994.

Neufeld & O'Leary, New York City (David S.J. Neufeld and Douglas S. Trokie, of counsel), for appellant.

Tunstead, Schechter & Torre, New York City (Charles W. Segal, of counsel), for respondent.

Before SULLIVAN, J.P., and JOY, FRIEDMANN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Suffolk County (Lama, J.), entered December 19, 1991, which denied the defendant's motion to dismiss the action pursuant to CPLR 3211(a)(4) and RPAPL 1301 or to stay the action pursuant to CPLR 2201.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the motion is granted to the extent of staying the instant action until entry of judgment in an action entitled L & L Painting Co. v. Columbia Sussex Corporation pending in the Supreme Court, Suffolk County, under Index No. 14110/90, or until further order of the Supreme Court, Suffolk County, in that action.

The defendant Columbia Sussex Corporation (hereinafter Columbia) is an owner-developer of a hotel project in Melville, Long Island. The plaintiff Anron Air Systems, Inc. (hereinafter Anron), was a subcontractor on that project. In June 1990 Anron commenced the instant action to recover damages for breach of contract against Columbia, alleging that it had not been paid in full for the work it had performed in installing a heating and air conditioning system in the hotel. Based upon this debt, Anron filed a notice of lien against the hotel in July 1990.

In the Spring of 1991 another claimant of Columbia, L & L Painting Co., Inc. (hereinafter L & L) commenced a lien foreclosure action against Columbia and a multitude of its lienors on the hotel project in the Supreme Court, Suffolk County, under Index No. 14110/90. Anron interposed an answer which contained a cross claim against Columbia seeking to foreclose its July 1990 lien. Both the original breach of contract action and the cross claim seeking to foreclose the lien were based upon the same underlying debt.

Columbia then moved to dismiss the instant action alleging that Anron was prohibited from maintaining it while its lien foreclosure action was pending. The Supreme Court denied the motion, on the ground that the breach of contract action had been commenced prior to the time Anron asserted its cross claim to foreclose its lien. We now reverse to the extent of staying the prosecution of the instant action.

Pursuant to Lien Law § 43:

"The provisions of the [RPAPL] relating to actions [to foreclose] a mortgage [on] real property, and the sale and distribution of the proceeds thereof, apply to actions in a court of record, to enforce mechanics' liens on real property, except as otherwise provided in [Article 3 of the Lien Law]."

A review of the Lien Law reveals that it does not "otherwise provide" with respect to the enforcement of mechanics' liens on real property such as the one at bar. Therefore, pursuant to Lien Law § 43, the provisions of the RPAPL are applicable herein.

RPAPL 1301 entitled "Separate action for mortgage debt" provides in pertinent part as follows:

"(3) While [an] action [to foreclose a mortgage] is pending * * * no other action shall be commenced or maintained to recover any part of the mortgage debt,...