Ingram & Greene, Inc. v. Wynne
| Decision Date | 22 June 1965 |
| Citation | 262 N.Y.S.2d 663,47 Misc.2d 200 |
| Parties | INGRAM & GREENE, INC., et al., Plaintiffs v. Angus G. WYNNE, Jr., et al., Defendants. |
| Court | New York Supreme Court |
Robert E. Herman, New York City, for plaintiff Tishman Construction Corp.; Morris Pottish, New York City, of counsel.
Dollinger & Dollinger, New York City for plaintiff Ingram & Greene, Inc.; morris Pottish, New York City, of counsel.
Jacobs, Persinger & Parker, New York City, for plaintiff Consolidated Electric Const. Co., Inc.
Whitman, Ransom & Coulson, New York City, for defendant New York World's Fair 1964-1965 Corp.; William T. Farley, John V. Thornton, and Dugald C. Brown, New York City, of counsel.
In this action to foreclose certain mechanics' liens upon the leasehold interest of the defendant New York World's Fair 1964-1965 Corporation (hereinafter called the Fair Corporation) and the subleasehold interest of defendants Angus G. Wynne, Jr., and Compass Fair, Inc., plaintiffs Ingram & Greene, Inc., and Tishman Construction Corp. (hereinafter called Ingram and Tishman, respectively) move, in substance, (1) for summary judgment, (2) for the appointment of a temporary receiver of the rents and profits accruing to or receivable by the Fair Corporation, and (3) for a temporary injunction restraining the Fair Corporation from paying out any of said rents and profits during the pendency of this action. Plaintiff Consolidated Electric Construction Co., Inc. (hereinafter called Consolidated) cross-moves for the same relief. The Fair Corporation cross-moves to dismiss the complaint on the ground that the City of New York is a necessary party to this action. Defendants Wynne and Compass Fair, Inc., the sublessees, are in default in appearing in this action.
Pursuant to chapter 428 of the Laws of 1960, the City of New York leased certain park lands in Queens County to the Fair Corporation under an agreement dated May 27, 1960, for the exclusive purpose of operating a World's Fair. The Fair Corporation sublet a portion of said park lands ot Wynne and Compass Fair, Inc., for the purpose of building and operating a pavilion known as the Texas Pavilion and Music Hall in conjunction with said World's Fair. In December, 1962 Tishman contracted with Wynne and Compass Fair, Inc., to construct said pavilion and subcontracted the excavation and concrete work to Ingram. Consolidated contracted to install the electrical equipment.
The plaintiffs filed mechanics' liens against the leasehold interest of the Fair Corporation and the subleasehold interest of Wynne and Compass Fair, Inc., but not against the feehold interest of the City of New York.
Wynne and Compass Fair, Inc., have been adjudicated bankrupts and are no longer tenants or in possession of the Texas Pavilion and Music Hall, their lease having been terminated. Heretofore, in separate actions for money only, Tishman and Consolidated obtained judgments against Wynne and Compass Fair, Inc., for the monies due under the aforesaid construction contracts, and for which monies the plaintiffs now claim liens.
The Fair Corporation opposes the main motion and the cross motion by Consolidated on the ground, among others, that a mechanic's lien may not be had against real property owned by the City of New York.
There is no doubt that, under the authority of John Kennedy & Co., Inc. v. New York World's Fair 1939, Inc., 260 App.Div. 386, 22 N.Y.S.2d 901, affd. 288 N.Y. 494, 41 N.E.2d 789, the park lands of the City of New York are exempt from liens and lien foreclosure. The plaintiffs concede that they are not entitled to a lien against the feehold interest of the City and do not claim one, but contend that under Lien Law, sections 2 and 4, they may properly have mechanics' liens against the leasehold interest of the Fair Corporation and the subleasehold interest of Wynne and Compass Fair, Inc. Plaintiffs further rely on the Special Term decision in the Kennedy case (174 Misc. 729, 20 N.Y.S.2d 934) which holds that a lien attached to the feehold interest of the City and the leasehold interest of New York World's Fair 1939 Inc. They argue that the Appellate Division, in reversing that decision, pointed out the futility of foreclosing a lien on an expired leasehold (the 1939 World's Fair had terminated when the action to foreclose the lien was commenced) and impliedly affirmed the determination at Special Term that a lien may attach to the leasehold interest.
While the court is aware that the Appellate Division pointed out the futility of foreclosure because of the expiration of the lease, it does not agree with the plaintiffs that the Appellate Division thereby ruled that the lease was susceptible to lien. (See John Kennedy & Co., Inc. v. New York World's Fair 1939, Inc., 260 App.Div. 386, 389-390, 22 N.Y.S.2d 901, 904-905.)
A mechanic's lien may attach to a leasehold interest in privatelyowned real estate. (See Knapp v. Brown, 45 N.Y. 207, 212; Cornell v. Barney, 94 N.Y. 394, 399; Jensen, Mechanics' Lien Law, § 42.) For purposes of these motions, the court will assume that a mechanic's lien may also attach to a leasehold interest in publicly-owned real estate.
Park land owned by the City of New York is inalienable (New York City Charter, § 383; see Aldrich v. City of New York, 208 Misc. 930, 145 N.Y.S.2d 732, affd. 2 A.D.2d 760, 154 N.Y.S.2d 427) and may not be leased except (1) upon the approval of the Board of Estimate of the City of New York, with a lease given at public auction or by sealed bid, or (2) as otherwise provided by law. (New York City Charter, § 384.) The clear intendment of these sections of the New York City Charter is that no one may acquire a lease to a City park without the approval of the Board of Estimate or the State Legislature. By chapter 428 of the Laws of 1960, the Legislature authorized the City of New York to lease certain park lands in Flushing Meadow, Queens County, to the Fair Corporation 'or any successor corporation' without a public auction or sealed bids. Upon a reading of chapter 428 of the Laws of 1960, it is clear that the term 'successor corporation' includes only a nonprofit membership corporation approved by the State and the City, organized for the purpose of running a World's Fair and which, upon the close of the Fair, would pay its net receipts to the City for specified public uses.
If the leasehold interest of the Fair Corporation is foreclosed as requested by plaintiffs...
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