Outrigger Const. Co., Inc. v. Nostrand Ave. Development Corp.
| Decision Date | 31 July 1995 |
| Parties | OUTRIGGER CONSTRUCTION COMPANY, INC., Appellant, v. NOSTRAND AVENUE DEVELOPMENT CORPORATION, et al., Defendants, Bank Leumi Trust Company of New York, Respondent (and a third-party action). |
| Court | New York Supreme Court — Appellate Division |
Connors & Sullivan, P.C., Brooklyn (Peter G. Gray, of counsel), for appellant.
Herrick, Feinstein, New York City (Christopher J. Sullivan and Darlene Fairman, of counsel), for respondent.
Before ROSENBLATT, J.P., and COPERTINO, HART and FRIEDMANN, JJ.
MEMORANDUM BY THE COURT.
In an action to foreclose a mechanic's lien, the plaintiff appeals from an order of the Supreme Court, Kings County (Garry, J.), dated February 28, 1994, which granted the motion of the defendant Bank Leumi Trust Company of New York for partial summary judgment declaring the mechanic's lien to be null and void and dismissing the complaint insofar as it is asserted against it.
ORDERED that the order is affirmed, with costs.
The plaintiff, Outrigger Construction Company, Inc., commenced this action to foreclose a mechanic's lien on real property owned by Nostrand Avenue Development Corporation (hereinafter Nostrand) and on which the defendant Bank Leumi Trust Company of New York (hereinafter Bank Leumi) held a mortgage. The plaintiff had performed construction work on the property for Nostrand. However, Nostrand failed to fully pay the plaintiff for its labor and materials.
On October 26, 1990, the plaintiff filed a notice of a mechanic's lien in the amount of $68,480.46 on the real property in question. On November 21, 1990, the plaintiff served a notice of the lien on Nostrand in compliance with Lien Law § 11. On November 26, 1990, the plaintiff and Nostrand entered into a stipulation in which they agreed that the mechanic's lien would be discharged by the filing of a bond in the amount of $68,480.46. The plaintiff, however, did not file proof of service of the notice of the lien with the Kings County Clerk within 35 days after the filing of the notice of the lien as required by Lien Law § 11. The plaintiff contends that the stipulation between it and Nostrand, which was made within the 35-day period, obviates the need for filing proof of service of the notice of the mechanic's lien pursuant to Lien Law § 11.
The Supreme Court properly declared the mechanic's lien null and void and properly dismissed the complaint insofar as it is asserted against Bank Leumi. The plaintiff failed to file proof of service of the notice of the...
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Outrigger Const. Co., Inc. v. Bank Leumi Trust Co. of New York
...plaintiff's prior action, which was to foreclose on a mechanic's lien on the subject property (see, Outrigger Constr. Co. v. Nostrand Ave. Dev. Corp., 217 A.D.2d 689, 630 N.Y.S.2d 332), was not an adjudication on the merits (see, Gramatan Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 485, 4......
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