Clifton Steel Corp. v. General Electric Co.

80 A.D.2d 715, 437 N.Y.S.2d 735, 1981 N.Y. App. Div. LEXIS 10431

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 1981
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term, entered September 8, 1980 in Albany County, which granted plaintiff’s motion to amend its notice of mechanic’s lien nunc pro tunc and to dismiss defendants’ first, second and fourth affirmative defenses, and which denied defendants’ cross motion for summary judgment. This action to enforce a mechanic’s lien involves a different contract from that in the companion case of Clifton Steel Corp. v General Elec. Co. (80 AD2d 714), but nevertheless, the issues on appeal, with one exception, are identical. As to those issues, the order of Special Term denying defendants’ cross motion for summary judgment and granting plaintiff’s motion to dismiss affirmative defenses is affirmed for the reasons set forth in the companion case. Upon this appeal, defendants contend that Special Term erred in permitting plaintiff to amend its notice of mechanic’s lien nunc pro tunc as to the date upon which the work was completed. Subdivision 2 of section 12-a of the Lien Law provides that courts may make an order amending a notice of lien nunc pro tunc. The date of the completion of labor on the contract is not of such a nature as to preclude the existence of a valid lien even if erroneous, and, accordingly, the order was properly granted. (See Matter of Naclerio Contr. Co. v Rialto Realty Corp., 28 Misc 2d 957.) Order affirmed, with one bill of costs to plaintiff. Sweeney, J.P., Main, Casey, Mikoll and Herlihy, JJ., concur.