96 A.D.2d 1090 | N.Y. App. Div. | 1983
—• In an action to foreclose a mechanic’s lien, defendants J & J Milano, Inc., James Milano and Jacqueline Milano appeal, as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Rosenblatt, J.), dated May 4, 1982, as, upon reargument, adhered to its prior determination dated March 31,1982, which denied their motion for summary judgment dismissing plaintiff’s complaint as against them. Order reversed, insofar as appealed from, with costs, and upon reargument, order dated March 31, 1982 vacated and appellants’ motion granted. For the following reasons, we agree with Special Term’s implied conclusion that plaintiff’s notice of mechanic’s lien is jurisdictionally defective and therefore invalid: (1) The lien herein names defendants James Milano and Jacqueline Milano as the owners of the two tracts of land involved. In fact, as the record shows, the first tract is owned by defendant J & J Milano, Inc., while the second is owned by defendant Jacqueline Milano. The lien is therefore invalid as against the first tract, since it fails to name its true owner, J & J Milano, Inc. (See Lien Law, § 9, subd 2; Cates & Co. v National Fair & Exposition Assn., 225 NY 142.) (2) A notice of mechanic’s lien must name the property subject thereto, “with a description thereof sufficient for identification”. (Lien Law, § 9, subd 7.) Such a description must be sufficiently specific to allow an identification of the premises with reasonable certainty to the exclusion of all other premises. (See Hudson Demolition Co. v Ismor Realty Corp., 62 AD2d 980; Sprickerhoff v Gordon, 120 App Div 748.) The notice of lien herein described the property {two tracts) as situated “on West side of Wheeler Hill Road, Town of Wappinger, Dutchess County, New York”. This is both inaccurate (since both tracts are in fact located north of the road) and insufficient (since no geographic co-ordinates are provided). These deficiencies render the lien invalid. (3) It is well settled that a notice of mechanic’s lien which purports to burden two or more separately owned tracts, without apportioning the labor performed and materials furnished between the several tracts, is invalid. {Empire Pile Driving Corp. v Hylan Sanitary Serv., 32 AD2d 563; Matter of Twin County Tr. Mix v Ingula Bldrs. Corp., 27 AD2d 939\Buhler Co. v New York Dock Co., 170 App Div 486; Leske v Wolf, 154 App Div 233.) This lien, which covers two separately owned tracts, without apportioning the amount claimed between them, is therefore also invalid for this reason. (4) A notice of mechanic’s lien is valid for one year, but may be renewed (while still valid) for another year by court order, one year at a time. (See Lien Law, § 17.) The complaint herein alleges that the lien, originally filed on April 12, 1976, was thereafter renewed on March 21, 1977, March 17, 1978, March 17, 1979 and March 24, 1980. However, on March 17, 1980, the lien expired; therefore, on March 24,1980, when it was allegedly renewed, it was no longer valid, and the purported renewal is thus a nullity. The complaint should be dismissed as against defendant James Milano, for the further reason that he is not the owner of either tract and the complaint fails to allege any contract between him and plaintiff. Ordinarily, a defendant’s motion for summary judgment must be denied where it is predicated on a ground not pleaded as a defense in the answer. (See Rel Commercial Corp. v Rakofsky, 90 AD2d 541; Furlo v Cheek, 20 AD2d 939; Krohn v Steinlauf, 11 AD2d 695; Ziegler v Mancuso &