82 A.D.2d 798 | N.Y. App. Div. | 1981
In an action to foreclose a mechanic’s lien, the appeals are from (1) so much of a decision of the Supreme Court, Richmond County (Rubin, J.), dated May 14, 1980, as denied the appellant-intervenor’s motion insofar as it was to dismiss the complaint, without prejudice to renew after an exchange of pleadings, (2) a decision of the same court dated September 23, 1980, which denied the appellants’ motion to dismiss the complaint, and (3) stated portions of an order of the same court dated October 31, 1980, which, inter alia, denied the said motions to dismiss. Appeals from decisions dated May 14, 1980 and September 23, 1980, respectively, dismissed. No appeal lies from a decision. Order dated October 31,1980 modified, on the law, by adding provisions thereto (1) directing defendant Barbara Grae to execute an undertaking in the amount of $4,250, and (2) directing that, upon such execution, the order (if still in effect) enjoining the Chicago Title Insurance Company from paying out an escrow deposit of $5,000 is vacated and the complaint against defendant Joel Grae is dismissed. As so modified, order affirmed insofar as appealed from. Plaintiff is awarded one bill of $50 costs and disbursements. Appellants and intervenor-appellant contend that the mechanic’s lien is void since it was untimely filed. The notice of lien is valid on its face since the notice indicates that it was filed within four months after the completion of the contract (see Lien Law, § 10). Where there exists “no defect upon the face of a notice of lien, any dispute regarding the validity of the lien must await trial thereof by foreclosure” and the court cannot summarily discharge the lien (see Dember Constr. Corp. v P & R Elec. Corp., 76 AD2d 540, 546; Lien Law, § 19, subd [6]). There is a triable issue of fact as to whether plaintiff’s latest services, which were rendered within four months of the filing