240-35 Associates v. Major Builders Corp.

234 A.D.2d 234, 651 N.Y.S.2d 49, 1996 N.Y. App. Div. LEXIS 12962

Opinion

—Order, Supreme Court, New York County (Walter Tolub, J.), entered October 24, 1995, which, in an action to foreclose a mechanic’s lien, denied defendants’ motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the complaint dismissed, with leave to plaintiff to replead a cause of action for breach of contract within 30 days from the date of service of this order with notice of entry. The Clerk is directed to enter judgment in favor of defendants Associated Property Management Group and 240-35 Associates dismissing the complaint as against them.

The lien cannot be enforced since it expired a week before this action was commenced (Lien Law § 17). However, the Lien Law permits a personal judgment to be obtained where the complaint contains allegations sufficient to state a cause of action in contract (Lien Law § 54; Noce v Kaufman, 2 NY2d 347; Abbott v Easton, 195 NY 372, 376; Paro v Biondo, 105 AD2d 577, 577-578; Spartan Concrete Corp. v Harbour Val. Homes, 71 AD2d 950; Eagle Contrs. v Black, 7 AD2d 622). We therefore grant plaintiff leave to plead such a cause of action. Concur— Sullivan, J. P., Rosenberger, Rubin, Ross and Mazzarelli, JJ.