Department of Health v. East Minster Realty Corp.

New York Supreme Court

Department of Health v. East Minster Realty Corp.

53 Misc. 2d 957, 280 N.Y.S.2d 63, 1967 N.Y. Misc. LEXIS 1600

DecidedApril 18, 1967

StatusPublished

This text of 53 Misc. 2d 957 (Department of Health v. East Minster Realty Corp.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Department of Health v. East Minster Realty Corp., 53 Misc. 2d 957, 280 N.Y.S.2d 63, 1967 N.Y. Misc. LEXIS 1600 (N.Y. Super. Ct. 1967).

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Opinion

Charles Marks, J.

This is an application pursuant to section 59 of the Lien Law for the return of a deposit made to discharge a lien. The Department of Health of the City of New York filed a notice of lien for labor alleged to have been performed in the maintenance and repair of plumbing, heating, lighting and sewage disposal facilities claimed to be necessary to abate a public nuisance, and on November 17,1966 the said lien was discharged by the deposit of a sum of money pursuant to section 20 of the Lien Law. On February 2, 1967, the owner [958]*958served a notice upon .the lienor pursuant to section 59 of the Lien Law demanding that an action be commenced within 30 days. No action was commenced within the 30-day period. However, on March 9, 1967, the lienor did commence an action seeking to recover for the work, labor and services furnished but did not seek to foreclose the lien. It appears from the papers submitted herein that the lienor refuses to commence an action to foreclose the lien and contends that section 59 of the Lien Law has no application to the subject lien obtained pursuant to Administrative Code of the City of New York. The lienor admits that its right to the lien exists pursuant to section 564^24.0 of the Administrative Code of the City of New York. The language contained therein expressly states that the enforcement and the discharge of lien is carried on in the same manner as mechanics ’ liens. There is no summary application available to the movant to test the validity of the lien (Matter of Simonetta Concrete Constr. Corp., 192 N. Y. S. 2d 96). The only method available to test the lienor’s right to require that money be held as security is in an action to foreclose the lien and section 59 of the Lien Law is the only means available to compel the commencement of the action. The lienor cannot ignore the provisions thereof and urge the existence of some vague equitable principle that would require that money be kept on deposit when no right thereto will be. asserted in the action. Accordingly, the application is granted. Settle order providing for return of the money deposited.

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Charles Marks, J.

This is an application pursuant to section 59 of the Lien Law for the return of a deposit made to discharge a lien. The Department of Health of the City of New York filed a notice of lien for labor alleged to have been performed in the maintenance and repair of plumbing, heating, lighting and sewage disposal facilities claimed to be necessary to abate a public nuisance, and on November 17,1966 the said lien was discharged by the deposit of a sum of money pursuant to section 20 of the Lien Law. On February 2, 1967, the owner [958]*958served a notice upon .the lienor pursuant to section 59 of the Lien Law demanding that an action be commenced within 30 days. No action was commenced within the 30-day period. However, on March 9, 1967, the lienor did commence an action seeking to recover for the work, labor and services furnished but did not seek to foreclose the lien. It appears from the papers submitted herein that the lienor refuses to commence an action to foreclose the lien and contends that section 59 of the Lien Law has no application to the subject lien obtained pursuant to Administrative Code of the City of New York. The lienor admits that its right to the lien exists pursuant to section 564^24.0 of the Administrative Code of the City of New York. The language contained therein expressly states that the enforcement and the discharge of lien is carried on in the same manner as mechanics ’ liens. There is no summary application available to the movant to test the validity of the lien (Matter of Simonetta Concrete Constr. Corp., 192 N. Y. S. 2d 96). The only method available to test the lienor’s right to require that money be held as security is in an action to foreclose the lien and section 59 of the Lien Law is the only means available to compel the commencement of the action. The lienor cannot ignore the provisions thereof and urge the existence of some vague equitable principle that would require that money be kept on deposit when no right thereto will be. asserted in the action. Accordingly, the application is granted. Settle order providing for return of the money deposited.

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Bluebook (online)

53 Misc. 2d 957, 280 N.Y.S.2d 63, 1967 N.Y. Misc. LEXIS 1600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-health-v-east-minster-realty-corp-nysupct-1967.