Ingalls Iron Works Co. v. Fehlhaber Corp.
| Decision Date | 13 December 1967 |
| Docket Number | 2,Nos. 1,s. 1 |
| Citation | 285 N.Y.S.2d 369,29 A.D.2d 29 |
| Parties | INGALLS IRON WORKS COMPANY, Appellant, v. FEHLHABER CORPORATION et al., Respondents. INGALLS IRON WORKS COMPANY, Appellant, v. FEHLHABER CORPORATION et al., Respondents. Action |
| Court | New York Supreme Court — Appellate Division |
McChesney & Kenney, Troy (C. V. Stelzenmuller, Birmingham, Ala., of counsel), for plaintiff-appellant.
Norton, Sacks, Molineaux & Pastore, New York City (Charles B. Molineaux, Jr., New York City, of counsel), for defendants-respondents, Fehlhaber Corporation and Fehlhaber-Terry, a joint venture.
I. J. Ginsberg, Forest Hills, for defendant-respondent, Terry Contracting, Inc.
Louis J. Lefkowitz, Atty. Gen. (Ruth K. Toch, Albany, of counsel), for defendant-respondent, People of the State of New York.
Before GIBSON, P.J., and HERLIHY, AULISI and GABRIELLI, JJ.
These appeals are from orders entered in the Supreme Court, Albany County, dismissing the complaints and vacating and discharging notices of liens.
On April 8, 1960, the State awarded the general contract for a highway improvement project denominated Interstate Route Connection 512--Gowanus Expressway, to respondents Fehlhaber Corporation and Terry Contracting, Inc., as joint-venturers known as Fehlhaber-Terry. In the course of the work, appellant supplied certain steel for use on the project. On June 10 and June 28, 1965 (and amended on July 24, 1965) appellant, alleging it had not been paid for some of the materials furnished, filed and served Notices of Mechanics Liens pursuant to section 12 of the Lien Law, upon the Comptroller of the State of New York, the Department of Public Works and respondents. In November, 1965, these actions were commenced to foreclose the public improvement liens and, upon motions made by these respondents pursuant to CPLR 3211 (subd. (a)), the complaints were dismissed and the liens vacated and cancelled. The sole issue relates to the timeliness of the filing of the notices of liens.
Section 12 of the Lien Law provides, in pertinent part that:
'At any time before the construction * * * of a public improvement is completed and accepted by the state * * * and within thirty days after such completion and acceptance, a person performing work for or furnishing materials to a contractor * * * may file a notice of lien with the head of the department or bureau having charge of such construction * * * and with the comptroller of the state * * *.'
Special Term has correctly determined that the liens were not timely filed as the work on the project was completed on September 29, 1964 and the State had 'accepted' the public improvement on December 28, 1964 by the formal letter of the Deputy Chief Engineer of the Department of Public Works. Appellant erroneously claims that the improvement was not effectively accepted by the State on the ground that the Deputy Chief Engineer had no legal authority to do so and, as a consequence thereof, its notices of lien were properly filed.
We cannot agree that the delegation of authority to accept improvements is limited to State highways as distinguished from Interstate highways. There is ample authority for acceptance of the improvement under section 44 of the Highway Law. Section 340--b thereof gives additional support for this conclusion wherein it is provided that:
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Woodland Private Study Group v. State, Dept. of Environmental Protection
...to protect an agency order that had not "affected or imposed burdens upon the public generally." Ingalls Iron Works v. Fehlhaber Corp., 29 A.D.2d 29, 32, 285 N.Y.S.2d 369, 372 (1967). Oregon's statutory exception for "internal management directives" was subjected to a similar judicial limit......
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Ingalls Iron Works Company v. Fehlhaber Corporation
...have denied Ingalls' claim to a mechanic's lien on the ground that the lien filing was untimely, Ingalls Iron Works Co. v. Fehlhaber, Inc., 29 App.Div.2d 29, 285 N.Y.S. 2d 369 (3d Dept. 1967), aff'd mem., 24 N.Y.2d 862, 301 N.Y.S.2d 95, 248 N.E.2d 923 (1969). Ingalls' only status is as a tr......
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Ingalls Iron Works Company v. Fehlhaber Corporation
...could not do. See Ingalls Iron Works Co. v. Fehlhaber Corp., 24 N.Y.2d 862, 301 N.Y.S.2d 95, 248 N.E. 2d 923 (1969), aff'g, 29 A.D.2d 29, 285 N.Y.S.2d 369 (1967). Judge Foley refused to grant summary judgment to the defendants as to the rest of the complaint on the ground that there were ma......
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Fehlhaber Corp. v. State
...and discharged of record, the dismissal was not affirmed in the Appellate Division, Third Department (Ingalls Iron Works Company v. Fehlhaber Corporation, 29 A.D.2d 29, 285 N.Y.S.2d 369) until December 13, 1967, and in the Court of Appeals (24 N.Y.2d 862, 301 N.Y.S.2d 95, 248 N.E.2d 923) un......