S. J. Groves & Sons Co. v. L. B. Smith, Inc.

• Court: New York Supreme Court
• Writing for the Court: JOHN T. CASEY
• Citation: S. J. Groves & Sons Co. v. L. B. Smith, Inc., 329 N.Y.S.2d 29, 68 Misc.2d 1097 (N.Y. Sup. Ct. 1972)
• Decision Date: 18 January 1972
• Parties: Application of S. J. GROVES & SONS COMPANY v. L. B. SMITH INCORPORATED et al., Respondents.

Page 29

329 N.Y.S.2d 29

68 Misc.2d 1097

Application of S. J. GROVES & SONS COMPANY v. L. B. SMITH INCORPORATED et al., Respondents.

Supreme Court, Special Term, Albany County.

Jan. 18, 1972.

[68 Misc.2d 1098] Ainsworth, Sullivan, Tracy & Knauf, Albany, for S. J. Groves & sons co.

Edward S. Stewart, North Creek, for respondent Fred W. Harrison.

MEMORANDUM

JOHN T. CASEY, Justice.

S. J. Groves & Sons Company (herein Groves) has moved this court for an order vacating mechanic's liens which were filed by three parties: L. B. Smith, Incorporated, Fred W. Harrison and James Ingersoll. Groves claims the liens should be vacated upon the ground that the lis pendens which covered the liens has expired. L. B. Smith, Incorporated does not object to granting such relief and James Ingersoll failed to appear in opposition to the motion. The other lienor, Fred W. Harrison (herein Harrison) has submitted an affidavit in opposition to the motion.

Groves contracted with the State of New York to perform certain work and thereafter entered into a subcontract with another corporation, Warren Aggregates, Inc. (herein Warren) to perform the work under the prime contract. The lienors are materialmen and suppliers of Warren. The Harrison lien was filed on December 21, 1966. On January 3, 1967 a lis pendens was filed in which Harrison was named as a party. Under CPLR 6513 the lis pendens expired three years from the date of filing unless a motion to extend the lis pendents was granted by the court prior to the expiration of the three year period. Robbins v. Goldstein, 32 A.D.2d 1047, 303 N.Y.S.2d 822, app. dismissed 26 N.Y.2d 749, 309 N.Y.S.2d 50, 257 N.E.2d 295; Carvel-Dari Freeze Stores, Inc. v. Lukon, Sup., 219 N.Y.S.2d 716, modified 18 A.D.2d 700, 236 N.Y.S.2d 374. An extension was not obtained.

During the period of the lis pendens Warren went into bankruptcy and that court issued an order which provided in pertinent part:

That all persons be and they hereby are enjoined and stayed until final decree herein, from commencing any suits against Warren Aggregates, Inc. . . . other than suits to enforce liens upon the property of said debtor. . . .

Harrison claims that because of the order issued in the bankruptcy proceeding involving Warren, he was unable to obtain an order extending the lis pendens.

The reasons advanced by Harrison for denying the relief requested are not persuasive. First, the order of the bankruptcy court applied to proceeding against Warren and not against Groves--the party against whom the lien had been filed. Secondly, assuming that the stay applied to the proceedings against Groves, that order is not an excuse for complying with the statutory procedure for extending the lis pendens. In re Willax, 93 F.2d 293 (2d Cir.); see Pious Society of St. Paul, Inc. v. Goldhaber, 35 A.D.2d 674, 314 N.Y.S.2d 967; Dick Sand Co. v. State, 137 Misc. 622, 244 N.Y.S. 312.

One issue remains, i.e., whether a public improvement lien, the life of which was extended by filing a lis pendens, expires when the lis pendens expires. Section 17 of the Lien Law entitled 'Duration of Lien' provides in part:

A lien, the duration of which has been extended by the filing of a notice of the pendency of an action as above provided, shall nevertheless terminate as a lien after such notice has been cancelled as provided in section sixty-five hundred fourteen of the civil practice law and rules or has ceased to be effective as constructive notice as provided in section sixty-five hundred thirteen of the civil practice law and rules.

Section 18 of the Lien Law entitled 'Duration of lien under contract for a public improvement', provides, inter alia, that a lien under a contract for a public improvement expires six months after it was filed unless a notice of pendency is filed with the Comptroller of the State or the financial officers of the public corporation. Section 18 does not contain, however, a provision...