Bennett Bros. v. Bracewood Realty No. 1, Inc.

23 A.D.2d 498, 256 N.Y.S.2d 308, 1965 N.Y. App. Div. LEXIS 5024

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 18, 1965
• Status: Published

Opinion

In an action in which the complaint alleges two causes of action: first, an action to foreclose a mechanic’s lien, and second, an action to recover for work, labor and services and for the rental of certain excavation equipment, the defendant Braoewood Realty No. 1, Inc., appeals from so much of an order of the Supreme Court, Queens County, dated October 5, 1961, as: (1) granted plaintiff’s motion to amend its notice of lien, wunc pro tune, and (2) denied said defendant’s motion to dismiss the first cause of action for patent insufficiency. Order, insofar as appealed from, reversed, without costs; plaintiff’s motion to amend the notice of lien nimc pro time, denied with leave to plaintiff, if so advised, within 30 days after entry of the order hereon, to renew said motion on notice to all interested persons, as provided by statute (Lien Law, § 12-a); and defendant Bracewood’s motion to dismiss the first cause of action, denied without prejudice to renewal. While we would have affirmed the order granting plaintiff’s motion to amend the notice of lien had there been compliance with the notice provisions of the statute (Lien Law, § 12-a), we cannot do so in the absence of such notice and without an opportunity to existing lienors, mortgagees or purchasers in good faith to show- prejudice, if any (of. Matter of Heidi Constr. Gorp. [Pacemaker Constr. Gorp.], 20 Mise 2d 58, affid. sub nom. Matter of Pacemaker Constr. Gorp. v. Heidi Constr. Gorp., 12 A D 2d 643). Beldock, P. J., Ughetta, Christ, Brennan and Hopkins, JJ., concur. [31 Misc 2d 284.]