Bennett Bros. v. Bracewood Realty No. 1, Inc., 23 A.D.2d 498, 256 N.Y.S.2d 308 (N.Y.A.D. 2 Dept., Jan 18, 1965)

Supreme Court, Appellate Division, Second Department, New York.

BENNETT BROS., Respondent,
v.
BRACEWOOD REALTY NO. 1, INC., Appellant, and T. & R. Demolition Company, Inc.,
Defendant.


Jan. 18, 1965.


  Action to foreclose mechanic's lien and to recover for work, labor, and
services and for rental of certain excavation equipment. The Supreme Court,
Queens County, Harold Tessler, J., 31 Misc.2d 284, 220 N.Y.S.2d 38, granted
plaintiff's motion to amend notice of lien nunc pro tunc and denied defendant's
motion to dismiss first cause of action for patent insufficiency, and defendant
appealed. The Supreme Court, Appellate Division, held that mechanic's lien
claimant was not entitled to amend the notice without complying with notice
provisions of Lien Law and giving existing lien owners, mortgagees, or
purchasers in good faith an opportunity to show prejudice, if any.

  Order reversed insofar as appealed from; motion to amend denied with leave to
renew; motion to dismiss denied without prejudice to renewal.


West Headnotes

Mechanics' Liens  158
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Mechanic's lien claimant was not entitled to amend notice of lien nunc pro tunc
without complying with notice provisions of Lien Law and giving existing lien
owners, mortgagees, or purchasers in good faith an opportunity to show
prejudice, if any.  Lien Law, §  12-a.
  **308 Dreyer & Traub, Brooklyn, for appellant; Samuel Kirschenbaum, of
counsel.

  Harris Birnbaum, New York City, for respondent.


  Before BELDOCK, P. J., and UGHETTA, CHRIST, BRENNAN and HOPKINS, JJ.


  MEMORANDUM BY THE COURT.

  *498 In an action in which the complaint alleges two causes of action:  first,
an action to foreclose a mechanic's lien, and second, an action to recover for
work, labor and services and for the rental of certain excavation equipment, the
defendant Bracewood Realty No. 1, Inc., appeals from so much of an order of the
Supreme Court, Queens County, dated October 5, 1961, as:  (1) granted
plaintiff's motion to amend its notice of lien, nunc pro tunc; and (2) denied
said defendant's motion to dismiss the first cause of action for patent
insufficiency.

  Order, insofar as appealed from, reversed without costs; plaintiff's motion to
amend the notice of lien nunc pro tunc, denied with leave to **309 plaintiff, if
so advised, within thirty days after entry of the order hereon, to renew said
motion on notice to all inerested persons, as provided by statute (Lien Law, §  
12-a); and defendant Bracewood's motion to dismiss the first cause of action,
denied without prejudice to renewal.

  While we would have affirmed the order granting plaintiff's motion to amend
the notice of lien had there been compliance with the notice provisions of the
statute (Lien Law, §  12-a), we cannot do so in the absence of such notice and
without an opportunity to existing lienors, mortgagees or purchasers in good
faith to show prejudice, if any (cf. Matter of Heidi Constr. Corp. [Pacemaker
Constr. Corp.] 20 Misc.2d 58, 188 N.Y.S.2d 596, affd. sub nom. Matter of
Pacemaker Constr. Corp. v. Heidi Constr. Corp., 12 A.D.2d 643, 208 N.Y.S.2d
1000).

256 N.Y.S.2d 308, 23 A.D.2d 498

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