Contelmo's Sand & Gravel, Inc. v. J & J Milano, Inc.

• Citation: 96 A.D.2d 1090,467 N.Y.S.2d 55
• Court: New York Supreme Court Appellate Division
• Decision Date: 26 September 1983
• Parties: CONTELMO'S SAND & GRAVEL, INC., Respondent, v. J & J MILANO, INC., et al., Appellants, et al., Defendants.

Page 55

467 N.Y.S.2d 55

96 A.D.2d 1090

CONTELMO'S SAND & GRAVEL, INC., Respondent, v. J & J MILANO, INC., et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division Second Department.

Sept. 26, 1983.

Harold H. Reilly, Wappingers Falls, for appellants.

Jack Economou, Poughkeepsie, for respondent.

Before MOLLEN, P.J., and MANGANO, THOMPSON and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

In an action to foreclose a mechanic's lien, defendants J & J Milano, Inc., James Milano and Jacqueline Milano appeal, as limited by their brief, from so much of an order of the Supreme Court, Dutchess County, dated May 4, 1982, as, upon reargument, adhered, to its prior determination dated March 31, 1982, which denied their motion for summary judgment dismissing plaintiff's complaint as against them.

Order reversed insofar as appealed from, with costs, and upon reargument, order dated March 31, 1982 vacated and appellants' motion granted.

For the following reasons, we agree with Special Term's implied conclusion that plaintiff's notice of mechanic's lien is jurisdictionally defective and therefore invalid.

(1) The lien herein names defendants James Milano and Jacqueline Milano as the owners of the two tracts of land involved. In fact, as the record shows, the first tract is owned by defendant J & J Milano, Inc., while the second is owned by defendant Jacqueline Milano. The lien is therefore invalid as against the first tract, since it fails to name its true owner, J & J Milano, Inc. (See Lien Law, § 9, subd. 2; Gates & Co. v. National Fair & Exposition Assn., 225 N.Y. 142, 121 N.E. 741).

(2) A notice of mechanic's lien must name the property subject thereto, "with a description thereof sufficient for identification". (Lien Law, § 9, subd. 7.) Such a description must be sufficiently specific to allow an identification of the premises with reasonable certainty to the exclusion of all other premises. (See Hudson Demolition Co. v. Ismor Realty Corp., 62 A.D.2d 980, 403 N.Y.S.2d 327; Sprickerhoff v. Gordon, 120 App.Div. 748, 105 N.Y.S. 586.) The notice of lien herein described the property (two tracts) as situated "on West side of Wheeler Hill Road, Town of Wappinger, Dutchess County, New York". This is both inaccurate (since both tracts are in fact located north of the road) and insufficient (since no geographic co-ordinates are provided). These deficiencies render the lien invalid.

(3) It is well settled that a notice of mechanic's lien which purports to burden two or more separately owned tracts, without apportioning the labor performed and materials furnished between the several tracts, is invalid. (Empire Pile Driving Corp. v. Hylan Sanitary Serv., 32 A.D.2d 563, 300 N.Y.S.2d 434; Matter of Twin County Tr. Mix v. Ingula Bldrs. Corp., 27 A.D.2d 939, 278 N.Y.S.2d 990; Buhler Co. v. New York Dock Co., 170 App.Div. 486, 156 N.Y.S. 457; Leske v. Wolf, 154 App.Div. 233, 138 N.Y.S. 859). This lien, which covers two separately owned tracts, without apportioning the amount claimed between them, is therefore also invalid for this reason.

(4) A notice of mechanic's lien is valid for one year, but may be renewed (while still valid) for another year by court order, one year at a time. (See Lien Law, § 17.) The complaint herein alleges that the lien, originally filed on April 12, 1976, was thereafter renewed on March 21, 1977, March 17, 1978, March 17, 1979 and March 24, 1980. However, on March 17, 1980, the lien expired; therefore, on March 24, 1980, when it was allegedly renewed, it was no longer valid, and the purported renewal is thus a nullity.

The complaint should be dismissed as against defendant James Milano, for the further reason that he is not the owner of either tract and the complaint fails to allege any contract between him and plaintiff.

Ordinarily, a defendant's motion for summary judgment must be denied where it is predicated on a ground not pleaded as a defense in the answer. (See Rel. Commercial Corp. v. Rakofsky, 90 A.D.2d 541, 455 N.Y.S.2d 365; Furlo v. Cheek, 20 A.D.2d 939, 248 N.Y.S.2d 947; Krohn v. Steinlauf, 11 A.D.2d 695, 204 N.Y.S.2d 960; Ziegler v. Mancuso & Alessio, 283 App.Div. 813, 128 N.Y.S.2d 473.) However, here, where the motion was predicated on the invalidity of plaintiff's mechanic's lien, which was the basis of its action, there was no surprise or prejudice to plaintiff. (See Darling, Inc. v. City of Niagara Falls, 69 A.D.2d 989, 416 N.Y.S.2d 122, affd. 49 N.Y.2d 855, 427 N.Y.S.2d 791, 404 N.E.2d 1332; Greenspan v. Doldorf, 87 A.D.2d 884, 449 N.Y.S.2d 535; Carlson v. Travelers Ins. Co., 35 A.D.2d 351, 316 N.Y.S.2d 398.)

Special Term erred in denying appellants' motion "because the complaint may have life under contract theory". The Lien Law provides:

" § 54. Judgment in case of failure to establish lien. If the liener shall fail, for any reason, to establish a valid lien in an action under the provisions of this article, he may recover judgment therein for such sums as are due him, or which he might recover in an action on a contract, against any party to the action."

" § 64. Award of personal judgment by court or referee. A court or referee in any action heretofore or hereafter brought may at any time award a money judgment in favor of any party. This shall not preclude the rendition of other judgments in the action. Any payment made on account of either judgment in favor of a party shall be credited on the other...