Supreme Court, Appellate Division, Second Department, New York.
SPARTAN CONCRETE CORP., Respondent,v.HARBOUR VALLEY HOMES, INC., et al., Appellants, et al., Defendants.
Aug. 27, 1979.
Action was brought, inter alia, to recover for labor and materials and to foreclose a mechanic's lien. The Supreme Court, Special Term, Suffolk County, James A. Gowan, J., granted plaintiff's motion for leave to serve and file an amended complaint and denied a cross motion to dismiss the complaint, and appeal was taken. The Supreme Court, Appellate Division, held that: (1) where mechanic's lien was extended by filing of a notice of pendency of suit on July 17, 1975 and where notice of pendency was never extended, mechanic's lien expired by operation of law on January 17, 1978; (2) although mechanic's lien expired by operation of law, the expiration did not affect validity of cause of action based upon the underlying debt; and (3) trial court did not abuse its discretion in permitting third-party beneficiary cause of action to be interposed.
Affirmed as modified.
 Mechanics' Liens 260(6)257k260(6) Most Cited Cases
Where mechanic's lien was extended by filing of a notice of pendency of a foreclosure action on July 17, 1975 and where notice of pendency was never extended, mechanic's lien expired by operation of law on January 17, 1978. Lien Law § 17; CPLR 6513.
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Although mechanic's lien expired by operation of law by virtue of fact that notice of pendency of suit was not extended, the expiration did not affect validity of cause of action based upon the underlying debt. Lien Law § 17; CPLR 6513.
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Complaint of holder of mechanic's lien stated third-party beneficiary cause of action based on covenant between two defendants allegedly requiring one to discharge and release the lien by payment. Lien Law § § 17, 20; CPLR 3025. **14 Peirez, Ackerman & Levine, Great Neck (John M. Brickman, Great Neck, of counsel), for appellant Dorothy Morrison.
Dreyer & Traub, New York City (Samuel Kirschenbaum, New York City, of counsel), for appellants Harbour Valley Homes, Inc., Dollar Federal Savings & Loan Assn. and Leo Wolowitz.
Tananbaum & Sibener, Commack (Paul S. Sibener, Commack, of counsel), for respondent.
Before O'CONNOR, J. P., and LAZER, GULOTTA and MANGANO, JJ.
MEMORANDUM BY THE COURT.
In an action, Inter alia, to recover for labor and materials and to foreclose a mechanic's lien, defendants Harbour Valley Homes, Inc., Dollar Federal Savings & Loan Association, Leo Wolowitz and Dorothy Morrison appeal from an order of the Supreme Court, Suffolk County, dated December 18, 1978, which (1) granted plaintiff's motion for leave to serve and file an amended complaint and (2) denied a cross motion to dismiss the complaint.
Order modified, on the law, by deleting therefrom the provision denying the cross motion and substituting therefor a provision granting said cross motion to the extent of dismissing the second cause of action of the amended complaint. As so modified, order affirmed, with one bill of $50 costs and disbursements payable jointly to the appellants appearing separately and filing separate briefs.
 Although otherwise in agreement with the determination at Special Term, it **15 is our belief that the cross motion by defendants Harbour Valley Homes, Inc., Dollar Federal Savings & Loan Association and Leo Wolowitz should have been granted to the limited extent of ordering the dismissal of plaintiff's second cause of action (for foreclosure of the mechanic's lien and related relief). Section 17 of the Lien Law provides, Inter alia, that "(a) lien, the duration of which has been extended by the filing of a notice of pendency of an action 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 " (emphasis supplied). CPLR 6513 provides, in pertinent part, that, unless extended, "(a) notice of pendency shall be effective (as constructive notice) for a period of three years from the date of filing." Since the mechanic's lien in this case was extended by the filing of a notice of pendency on July 17, 1975, and since that notice of pendency was itself never extended, both it and the plaintiff's lien expired by operation of law on January 17, 1978 (see Robbins v. Goldstein, 32 A.D.2d 1047, 303 N.Y.S.2d 822, app. dsmd. 26 N.Y.2d 749, 309 N.Y.S.2d 50, 257 N.E.2d 295; Jensen, Mechanics' Liens (4th ed.), s 292). Accordingly, dismissal of plaintiff's second cause of action, which seeks foreclosure of the expired *951 lien should have been granted.[FN*]
FN* Plaintiff's first and second causes of action are identically pleaded in both the original and the amended complaints. The latter differs only insofar as it pleads a third cause of action discussed Infra.
 The foregoing would not, however, affect the validity of plaintiff's first cause of action (which is grounded upon the underlying debt), as section 17 of the Lien Law also provides that "(t)he failure to file a notice of pendency shall not abate the action as to any person liable for the payment of the debt specified in the notice of lien, and the action may be prosecuted to judgment against such person." By force of logic a similar rule should apply where, as here, the notice has expired during the pendency of the plaintiff's action.
 Turning briefly to plaintiff's third cause of action (which was asserted for the first time in the amended complaint), it is our belief that the third-party beneficiary claim asserted therein is sufficient as a matter of pleading, as it remains to be established whether the covenant between defendants Morrison and Wolowitz requiring the latter, Inter alia, to secure the "complete discharge and release" of the plaintiff's and another lien encumbering the subject realty contemplated the discharge and release of said liens by "payment" or one of the other means authorized by the Lien Law (see e. g. Lien Law, ss 19 and 20). If "payment" was contemplated then the plaintiff could qualify as a third-party beneficiary under their contract (see Hurd v. Wing, 93 App.Div. 62, 86 N.Y.S. 907; see also Case v. Case, 203 N.Y. 263, 266, 96 N.E. 440; Durnherr v. Rau, 135 N.Y. 219, 32 N.E. 49; 10 N.Y.Jur., Contracts, s 239). Since the foregoing raises a factual issue which cannot be determined on the conflicting affidavits of opposing counsel, we believe that Special Term did not abuse its discretion in permitting the third- party beneficiary cause of action to be interposed (CPLR 3025).
420 N.Y.S.2d 14, 71 A.D.2d 950
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