Yaphank Development Co., Inc. v. Heller

• Court: New York Supreme Court
• Writing for the Court: HARRY RICHARD BROWN
• Citation: Yaphank Development Co., Inc. v. Heller, 570 N.Y.S.2d 438, 150 Misc.2d 620 (N.Y. Sup. Ct. 1991)
• Decision Date: 14 March 1991
• Parties: YAPHANK DEVELOPMENT COMPANY, INC., Plaintiff, v. Joel HELLER, Carol Heller & Town of Islip Industrial Development Agency, Defendants.

Page 438

570 N.Y.S.2d 438

150 Misc.2d 620

YAPHANK DEVELOPMENT COMPANY, INC., Plaintiff, v. Joel HELLER, Carol Heller & Town of Islip Industrial Development Agency, Defendants.

Supreme Court, Suffolk County March 14, 1991.

Greshin, Ziegler & Pruzansky, Smithtown, for plaintiff.

Block, Amelkin & Hamburger, Smithtown, for defendants.

HARRY RICHARD BROWN, Justice.

The plaintiff, Yaphank Development Company, Inc., entered into a contract with the defendants Joel Heller and Carol Heller, to construct an industrial building on property located in Islandia, New York. Apparently, in order to save money on financing the building, title to the property was conveyed to the defendant, Town of Islip Industrial Development Agency (hereinafter referred to as the "IDA"), and the Hellers were given a long-term lease with a right of title. On March 2, 1988, the plaintiff filed a notice of mechanic's lien with the IDA, allegedly because the Hellers had failed to pay a balance due of $185,752.61. Shortly thereafter this action was commenced.

The defendants now move for summary judgment, dismissing the third and fourth causes of action against the IDA, on the ground that the plaintiff failed to comply with section 18 of the Lien Law. Specifically, they allege that no notice of pendency has ever been filed with the IDA. They allege that this omission requires a discharge of the plaintiff's lien, and therefore, a dismissal of the third and fourth causes of action, since they are based upon said lien.

The plaintiff opposes this motion and cross-moves for an order permitting the plaintiff to file a duplicate notice of pendency with the IDA. The plaintiff claims that a notice of pendency was in fact filed; however, such notice of pendency was filed with the Clerk of Suffolk County instead of the IDA. The plaintiff contends that the only purpose of filing a notice of pendency was to give notice of the plaintiff's claim, and to prevent the Hellers from paying off the IDA's bond and selling the land. The plaintiff asserts that allowing it to file a duplicate notice of pendency will not harm the general scheme of the Lien Law, and that the interest of no other party will be adversely affected.

It is well established that in order to grant summary judgment it must clearly appear that no material issues of fact have been presented (Museums at Stony Brook v. Village of Patchogue Fire Department, 146 A.D.2d 572, 536 N.Y.S.2d 177). A court's function on a motion for summary judgment is limited to issue-finding, not issue-determination (Pantote Big Alpha Foods, Inc. v. Schefman, 121 A.D.2d 295, 503 N.Y.S.2d 58). However, once a defendant has made a prima-facie showing that the cause of action has no merit, the burden shifts to the plaintiff to lay bare whatever proof it may have to show that issues of fact exist (Cohen v. City of New York, 128 A.D.2d 748, 513 N.Y.S.2d 459). In the present case, the plaintiff has failed to come forward with sufficient evidence to create a genuine triable issue, such as would defeat the defendants' motion for summary judgment on the third and fourth causes of action.

The Court is aware of the fact that equity makes every effort to aid in procuring payments to building contractors for materials supplied and work performed when it can be done within the spirit of the Lien Law and within the Court's power (Kennedy & Co., Inc. v. New York World's Fair 1939, Inc., 260 App.Div. 386, 22 N.Y.S.2d 901, aff'd 288 N.Y. 494, 41 N.E.2d 789). However, liberal construction of the Lien Law is not without limits, and the Court cannot change or dispense with the requirements of the statute (see,Tri-City Electric Co., Inc. v. People, 96 A.D.2d 146, 468 N.Y.S.2d 283, appeal dismissed 61 N.Y.2d 833, 473 N.Y.S.2d 974, 462 N.E.2d 151; aff'd63 N.Y.2d 969, 483 N.Y.S.2d 990, 473 N.E.2d 240). Lien Law section 18 provides in part:

If the lien is for labor done or materials furnished for a public improvement, it shall not continue for a longer period than six months from the time of filing the notice of such lien, unless an action is commenced to foreclose such lien within that time, and a notice of pendency...