Cook v. Carmen S. Pariso, Inc.

287 A.D.2d 208, 734 N.Y.S.2d 753, 2001 N.Y. App. Div. LEXIS 12480
CourtAppellate Division of the Supreme Court of the State of New York
DecidedDecember 21, 2001
StatusPublished
Cited by9 cases

This text of 287 A.D.2d 208 (Cook v. Carmen S. Pariso, Inc.) 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
Cook v. Carmen S. Pariso, Inc., 287 A.D.2d 208, 734 N.Y.S.2d 753, 2001 N.Y. App. Div. LEXIS 12480 (N.Y. Ct. App. 2001).

Opinion

OPINION OF THE COURT

Kehoe, J.

On this appeal by petitioners from an order denying their petition seeking to cancel and discharge three mechanics’ liens filed against their property by respondents, the issue is whether the liens have lapsed by operation of law as a result of respondents’ failure to obtain court orders extending such liens (see, Lien Law § 17), and whether Supreme Court thus erred in refusing to cancel and discharge such liens of record (see, Lien Law § 19). The underlying issue, one of first impression, is whether petitioners’ property, which contains two single family residences, is “real property improved * * * with a single family dwelling” (Lien Law § 17). Based on the ordinary meaning of the article “a,” other pertinent provisions of the Lien Law, and well-established canons of statutory construction, we conclude that the property is “improved * * * with a single family dwelling.”

I

At all relevant times, petitioners have owned the subject property at 8320-8326 County Road in the Town of Clarence. The property consists of 5.4 acres improved with two detached single family residences. Historically treated as a single parcel for tax purposes, it is classified by taxing authorities as “Multiple Residences.” Petitioners resided in the house at 8320 County Road beginning in 1968. Since building the house at 8326 County Road in the mid-1990’s, petitioners have occupied it as their residence and have rented the original house to others. Petitioners allege without contradiction that both houses have always been utilized by them and/or their tenants as “single family dwelling[s].” Respondents nonetheless label the property, or at least part of it, as “commercial,” based on petitioners’ plan in 1998 to sell part of their property to a commercial entity for an intended commercial use. In particular, petitioners negotiated the sale of one of the houses and its surrounding land to respondent GBH Paving, Inc. (GBH) and its related entity, Tricore Development Corp. (Tricore).

[210]*210In anticipation of taking title, GBH and Tricore sought to improve the property by constructing an access road and parking lot for the movement and storage of heavy equipment used by GBH and Tricore in their construction businesses. Between August and November 1998, with petitioners’ knowledge and approval, GBH and Tricore contracted or otherwise arranged for various aspects of that work to be done by the three respondents, none of which was paid for its work and each of which filed a notice of mechanic’s lien against the property. Respondent Carmen S. Pariso, Inc. (Pariso) filed its notice of lien on December 15, 1998, as did its apparently related entity, respondent Swift River Associates, Inc. (Swift River). GBH filed its notice of lien on February 3, 1999. By their terms, all three liens encumber both houses and all of petitioners’ land, as opposed to merely the house and land that petitioners intended to sell to GBH and Tricore. Before the proposed sale fell through, petitioners never officially subdivided the property or otherwise separated the parcel to be sold from the parcel to be retained by them.

None of the lienors commenced a legal proceeding to foreclose its lien or to obtain a court order of extension within one year of filing its notice of lien. Rather, each purported to extend its lien by filing a notice of extension. Pariso and Swift River filed their notices of extension on December 15, 1999, and GBH filed its notice of extension on January 28, 2000.

II

In August 2000, petitioners sought an order “permanently canceling and discharging of record the said Mechanic [s’] Liens,” pursuant to Lien Law §§ 17 and 19 (2). They argued that, because respondents did not obtain court orders within a year after filing their notices of lien, but rather improperly filed notices of extension, the liens had lapsed by operation of law.

In opposition, respondents argued that the Lien Law established no mechanism by which a court could summarily discharge a mechanic’s lien in these circumstances. Respondents further argued that the subject property is not of the type described by Lien Law § 17, as it is “not improved, or to be improved, by a single family dwelling” and is not used “only * * * for single family dwelling purposes,” but rather is classified by taxing authorities as “Multiple Residences.” Respondents further argued that the work performed by them “was not the type of work that is conducted for the construction of single [211]*211family dwellings” and in fact “had nothing whatsoever to do with improvement to a single family dwelling.” Respondents noted that the work was performed at petitioners’ request and “in connection with the improvement of a section of the property to be sold by Petitioners to GBH for use in a commercial capacity.”1

Supreme Court denied the petition.

Ill

The issue is whether petitioners are entitled to cancellation and discharge of the liens pursuant to Lien Law § 19 based on respondents’ failure to obtain court orders of extension pursuant to Lien Law § 17, or whether valid extensions of the liens could be obtained by respondents (thereby extending their time for commencing legal action to foreclose or extend the liens) simply by filing notices of extension. Resolution of that issue hinges on whether the subject property is “real property improved * * * with a single family dwelling.” In that connection, Lien Law §§ 17 and 19 (2) variously provide for the “extinguish[ment],” “terminat[ion],” or “discharge[ ]” of a lien unless an action to foreclose such lien or to secure an order continuing it has been commenced within one year of filing of the notice of lien, or

“unless an extension to such lien, except for a lien on real property improved or to be improved with a single family dwelling, is filed with the county clerk * * * within one year from the filing of the original notice of lien, continuing such lien” (Lien Law § 17 [emphasis supplied]).

Lien Law § 17 further provides that “[a] lien on real property improved or to be improved with a single family dwelling may only be extended by an order of a court of record, or a judge or justice thereof’ (emphasis supplied). Because respondents did not obtain court orders of extension, their liens are subject to discharge (see, Lien Law § 19 [2]) unless the encumbered realty is not “real property improved * * * with a single family dwelling” (Lien Law § 17).

IV

Based on our reading of the statute, we conclude that petitioners are entitled to an order discharging the liens. At [212]*212the outset, we reject respondents’ contentions that this proceeding does not lie pursuant to Lien Law § 19 (6) and that petitioners, because of asserted deficiencies in their papers before Supreme Court, may not rely on other statutes as a basis for relief. Lien Law § 19 (6), which relates to discharge of a lien based on a defect in the notice of lien, has no application to this case. In their initiating papers, petitioners properly relied on Lien Law §§ 17 and 19 (2), which seemingly provide for the extinguishment, cancellation or discharge of a lien automatically or by operation of law, upon the lapse of the one-year period (see, Lien Law §§ 17, 19 [2]; Gallo Bros. Constr. v Peccolo, 281 AD2d 811, 813; Green Elec. Contrs. v SMG Constr., 279 AD2d 287; L & M Plumbing v Decker, 219 AD2d 619, 619-620, lv denied 87 NY2d 806;

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Bluebook (online)
287 A.D.2d 208, 734 N.Y.S.2d 753, 2001 N.Y. App. Div. LEXIS 12480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-carmen-s-pariso-inc-nyappdiv-2001.