Rotodyne, Inc. v. Consolidated Edison Co. of New York, Inc.

• Decision Date: 18 December 1975
• Citation: 85 Misc.2d 347,378 N.Y.S.2d 899
• Parties: ROTODYNE, INC., Plaintiff, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., et al., Defendants.
• Court: New York Supreme Court

Page 899

378 N.Y.S.2d 899

85 Misc.2d 347

ROTODYNE, INC., Plaintiff, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., et al., Defendants.

Supreme Court, Westchester County.

Dec. 18, 1975.

Williams & O'Neill, New York City, for defendant-Consolidated edison.

Eagle & Fein, New York City, for defendant-T. D. McCormack Contracting Co., Inc.

Otterbourg, Steindler, Houston & Rosen, P.C., New York City, for defendant-Wedco Corp.

Friedmann, Fischman & Chikofsky, New York City, for plaintiff.

ANTHONY J. CERRATO, Justice.

Defendants, Wedco Corporation, Consolidated Edison Company of New York and T. D. McCormack Contracting Co., Inc., move for partial summary judgment dismissing the first cause of action to foreclose plaintiff's mechanic lien, and for an order vacating said mechanic's lien, on the ground that plaintiff expressly waived its right to file a mechanic's lien in the construction contract allegedly breached by the defendants.

It appears that prior to July 1, 1975, the express written waiver of a right to file and enforce a mechanic's lien was binding and enforceable notwithstanding a claimed breach of contract by the party seeking to enforce the waiver (see former Section 34 of the Lien Law; Cummings v. Broadway-94th Street Realty Co., 233 N.Y. 407, 135 N.E. 832; Arr-Em Plastering v. 515 E. 85th St. Corp., 25 A.D.2d 59, 266 N.Y.S.2d 944; Cieri Constr. Co. v. Gramercy Constr. Corp., 13 A.D.2d 901, 215 N.Y.S.2d 994).

However, effective July 1, 1975, a new Section 34 was added to the Lien Law (L.1975, C. 74, Section 2) which provides in pertinent part that:

'Notwithstanding the provisions of any other general, specific or local law, any contract, agreement or understanding whereby the right to file or enforce any lien created under article two is waived, shall be void as against public policy and wholly unenforceable.'

The contract containing the waiver by plaintiff herein was executed on July 24, 1971. The notice of lien was filed on July 15, 1974. The question presented is whether the waiver, valid when made, is still enforceable in light of the Legislature's subsequent declaration that such waivers are void and unenforceable. In this Court's opinion the waiver is no longer enforceable.

While the validity of a contract generally depends upon the law as it existed at the time it was made, Worthen Co. v. Kavanaugh, 295 U.S. 56, 55 S.Ct. 555, 79 L.Ed. 1298, the contract is subject to changes in public policy subsequently occurring and will be unenforceable if contrary to such changed policy provided only that the change in policy was intended to apply to such contract and is not violative of any constitutional limitations (cf. Compania de Inversiones Internacionales v. Indus. Mtge. Bk., 269 N.Y. 22, 198 N.E. 716; Straus & Co. v. Canadian Pacific Ry. Co., 254 N.Y. 407, 173 N.E. 564; Monti Marine Corp. v. Anderson, 27 Misc.2d 1057, 1058, 209 N.Y.S.2d 751, 752; 10 N.Y.Jur.Contracts, Sections 129--130, 137).

In the instant case, the sweeping language of Section 34 of the Lien Law clearly indicates an intention that...