Joseph P. Blitz, Inc., Application of
| Decision Date | 29 October 1962 |
| Citation | 36 Misc.2d 1028,234 N.Y.S.2d 671 |
| Parties | Application of JOSEPH P. BLITZ, INC., for an Order Discharging a Mechanic's Lien filed by Di Cesare & Monaco Building Company, Inc., Lienor. |
| Court | New York Supreme Court |
Charles Korn, New York City, for Joseph P. Blitz, Inc.
Vincent Forchelli, Long Island City, for lienor.
This is an application by the petitioner, as contractor, for an order summarily cancelling and discharging of record the mechanic's lien filed by Di Cesare & Monaco Building Company, Inc., as sub-contractor and lienor, against Parkway General Corp., as the owner of the premises affected by said lien.
It appears that petitioner, as contractor, entered into a written agreement with the lienor, as sub-contractor, for the construction by the latter of the foundation and performance of the general concrete work for the premises described in said mechanic's lien and for the concrete, steel and lumber and labor furnished and required for said work; that the total price agreed upon for the aforesaid work, labor and materials was $55,229.84 and that said lien has been filed for an unpaid balance of $14,204.20. There is nothing in the moving papers to dispute that that is the sum unpaid to said lienor.
It further appears that said written agreement, inter alia, contains the following provision:
'Subcontractor hereby waives and releases all lien or right of lien now existing or that may hereafter arise for work or labor performed or material furnished under this agreement under any lien laws upon the structure in which the Work is being or will be done, the land upon which the same is situated, and upon any money or moneys due or to become due to Contractor, and agrees if so required, to furnish a good and sufficient waiver of lien in form and substance satisfactory to Contractor from any or all persons and corporations furnishing labor or materials under Subcontractor, for the structure and the land upon which the same is situated.'
In the petition, it is alleged that the aforesaid quoted provision of the contract constitutes an effective and binding waiver of the aforesaid lien pursuant to section 34 of the Lien Law of the State of New York.
The lienor has interposed an answer to said petition wherein it is alleged that there is no authority in law for the summary discharge of the lien, and that the validity of the lien can only be litigated in a plenary action in which all the facts and circumstances surrounding the same can be developed in a full trial of the action.
The lienor, in its answer, further alleges that no effort has been made on the part of the petitioner or its agents to serve the lienor corporation personally although it maintains an office for such purpose.
It is significant that there is no allegation in the petition that the lien is invalid; nor is there any allegation therein that the sum for which the lien was filed is not due and owing to the lienor.
Section 19 of the Lien Law provides for the procedure for the summary discharge of a mechanic's lien for private improvement, and permits such procedure in the following situations:
1. Satisfaction or release (Subd. 1)
2. Lapse of time (Subd. 2)
3. Order of court subject to section 59 (Subd. 3)
4. Bonding of the lien (Subd. 4)
5. Prior judgment in favor of the owner (Subd. 5)
6. Notice of lien invalid on its face (Subd. 6)
Subdivision 6 of said section provides for a motion to discharge the lien upon
The lienor contends that the petitioner has not shown that the lien filed is invalid upon its face nor has it shown that any effort was made to serve the petitioner as provided in subdivision 6 of section 19 of the Lien Law, although the lienor maintains an office for that purpose.
It has been held that where there is a provision in a contract whereby a lienor waives his right to file a mechanic's lien, the lien may not be summarily discharged on motion.
'Where a subcontractor files a lien in violation of his waiver of his right to file, the lien may not be...
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Beacon Const. Co., Inc. v. Matco Elec. Co., Inc.
...for determining the validity of mechanic's liens. These cases are, at first glance, very persuasive. In Application of Jos. Blitz, Inc., 36 Misc.2d 1028, 234 N.Y.S.2d 671, 672-674 (1962), a case involving the validity of a mechanic's lien filed despite a waiver, the court articulated the ge......
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Dember Const. Corp. v. P & R Elec. Corp.
...the face of the notice of lien (Matter of Harbour Green Estates v. North Shore Elec. Corp., supra; Matter of Blitz, Inc. v. Di Cesare & Monaco Bldg. Co., 36 Misc.2d 1028, 234 N.Y.S.2d 671). The reasoning is easily comprehended: a valid contractual waiver of the right to file a lien preclude......
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Mahan Const. Corp. v. 373 Wythe Realty, Inc.
...attorney pursuant to Lien Law § 19(6), the court had not yet acquired jurisdiction over the lienors ( see Application of Joseph P. Blitz, Inc., 36 Misc.2d 1028, 1030, 234 N.Y.S.2d 671 [Sup.Ct., Queens County Special Term 1962] (holding that "service of the moving papers upon an attorney, wi......
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Milbank-Frawley Housing Development Fund Co. v. Marshall Const. Co.
...Misc.2d 541, 162 N.Y.S.2d 788; Simonetta Concrete Const. Corp. v. Dean Const. Co., Sup., 192 N.Y.S.2d 96; Matter of Blitz, Inc. v. Di Cesare & Monaco, 36 Misc.2d 1028, 234 N.Y.S.2d 671; see J. B. Cieri Construction Co., Inc. v. Gramercy Construction Corp., 13 A.D.2d 901, 215 N.Y.S.2d 994). ......