Premier Electrical Construction Corp. v. Security National Bank
39 A.D.2d 967
N.Y. App. Div.
1972
Check Treatment

In an action to enforce a trust under article 3-A of the Lien Law, plaintiff appeals from an order of the Supreme Court, Suffolk County, entered November 8, 1971, which granted *968defendants’ motion to dismiss the complaint on the ground that another class action is pending involving the same subject matter. Order modified by adding thereto a provision limiting the granting of the motion and the dismissal of the complaint to defendants Jilror Realty Corporation and Murray R. Breidbart and denying such relief as to the remaining defendants. As so modified, order affirmed, without costs. Subdivision 2 of section 77 of the Lien Law provides that an action such as this may be brought “provided no such action is pending at the time of the commencement thereof.” We read this to mean “ No such action ” involving the same defendant and the same plaintiff or a new plaintiff who could be said to be a member of the class which the plaintiff bringing the first action intended to benefit. Plaintiff is a creditor of a construction project which is the subject of a prior suit (Town & Country Enterprises v. Jilror Realty Corp., 36 A D 2d 829) that is presently pending and has proceeded to an interlocutory judgment requiring an accounting from two of the defendants herein, Jilror Realty Corporation and Murray R. Breidbart. These two defendants properly interposed the defense in question in the instant case and the Special Term was correct in dismissing the complaint as to them. Dismissal as to the remaining defendants, however, was error. They are not parties to the prior suit and, if plaintiff, on its own behalf and for those similarly situated, has a valid claim aganist them, it should be permitted to raise it and maintain this suit. We do not think such a result offends the language set forth in subdivision 1 of section 77 of the Lien Law. Hopkins, Acting P. J., Munder, Christ and Brennan, JJ., concur; Shapiro, J., not voting.