Christensen v. Martakis

Appellate Division of the Supreme Court of New York

Christensen v. Martakis

8 A.D.2d 932, 187 N.Y.S.2d 799, 1959 N.Y. App. Div. LEXIS 7974

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 18, 1959

StatusPublished

This text of 8 A.D.2d 932 (Christensen v. Martakis) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Christensen v. Martakis, 8 A.D.2d 932, 187 N.Y.S.2d 799, 1959 N.Y. App. Div. LEXIS 7974 (N.Y. Ct. App. 1959).

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Opinion

— Order reversed, without costs, and application denied, without prejudice to the right of the respondents to raise the question of the timeliness of filing the second notice of lien upon the trial of any action brought to foreclose the lien. Memorandum: The subcontractor appellant had the right to file a second notice of lien after the first had been discharged for failure to commence an action within the appropriate time, providing that the second notice was filed within the time specified in section 12 of the Lien Law (Berger Mfg. Co. v. City of New York, 206 N. Y. 24; Matter of Cohen, 209 App. Div. 413). The only effect of the order of Justice McClusky was to discharge the first lien. It had no application to the second notice of lien. The question of whether the second notice was timely served and filed cannot be determined upon the affidavits contained in the record before us but must be decided upon testimony. This determination is without prejudice to the right of respondent to raise the question of timeliness in the foreclosure action. All concur. (Appeal from an order of Oneida Special Term granting an application of petitioners to cancel of record a public improvement lien filed with the Rome City School District.) Present- — McCurn, P. J., Williams, Bastow, Goldman and Halpem, JJ.

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— Order reversed, without costs, and application denied, without prejudice to the right of the respondents to raise the question of the timeliness of filing the second notice of lien upon the trial of any action brought to foreclose the lien. Memorandum: The subcontractor appellant had the right to file a second notice of lien after the first had been discharged for failure to commence an action within the appropriate time, providing that the second notice was filed within the time specified in section 12 of the Lien Law (Berger Mfg. Co. v. City of New York, 206 N. Y. 24; Matter of Cohen, 209 App. Div. 413). The only effect of the order of Justice McClusky was to discharge the first lien. It had no application to the second notice of lien. The question of whether the second notice was timely served and filed cannot be determined upon the affidavits contained in the record before us but must be decided upon testimony. This determination is without prejudice to the right of respondent to raise the question of timeliness in the foreclosure action. All concur. (Appeal from an order of Oneida Special Term granting an application of petitioners to cancel of record a public improvement lien filed with the Rome City School District.) Present- — McCurn, P. J., Williams, Bastow, Goldman and Halpem, JJ.

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Bluebook (online)

8 A.D.2d 932, 187 N.Y.S.2d 799, 1959 N.Y. App. Div. LEXIS 7974, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christensen-v-martakis-nyappdiv-1959.

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