Empress Gardens, Inc. v. Smith-Town Water Co.

New York Supreme Court

Empress Gardens, Inc. v. Smith-Town Water Co.

40 Misc. 2d 778, 243 N.Y.S.2d 371, 1963 N.Y. Misc. LEXIS 1630

CourtNew York Supreme Court

DecidedSeptember 17, 1963

StatusPublished

Cited by2 cases

This text of 40 Misc. 2d 778 (Empress Gardens, Inc. v. Smith-Town Water Co.) 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

Empress Gardens, Inc. v. Smith-Town Water Co., 40 Misc. 2d 778, 243 N.Y.S.2d 371, 1963 N.Y. Misc. LEXIS 1630 (N.Y. Super. Ct. 1963).

Pincite

Opinion

Daniel G. Albert, J.

On this motion," the petitioner seeks an order canceling a notice of pendency of an action, and an undertaking, filed with the court to discharge a mechanic’s lien. The application was commenced by notice of motion and petition, and served on the respondent’s attorney. The respondent claims that the service is defective, and that the proceeding must be initiated by an order to show cause in which the court directs the manner and time of service.

This court in Matter of Jericho Jewish Center v. Hibner (28 Misc 2d 458) did hold that an application of this type should be instituted by an order to show cause. However, there is no statutory provision which mandates this procedure. The cited case recognized this fact, and directed a renewal of the application by order to show cause because the ordinary notice of motion presumably did not come to the attention of the lienor, since no one appeared in opposition. While the procedure described in the Jericho Jewish Center case may be preferable, it is not mandatory particularly where actual notice of the application is received by the lienor, as in this case. It may also be noted that an ordinary notice of motion was utilized to discharge an undertaking without objection in Matter of Wilbraham Realty Corp. (212 App. Div. 304). Since the lienor here does not dispute that more than one year has elapsed from the date of filing the lien without it having been renewed or an action started thereon, it has ceased to be a valid lien. The motion is granted.

Free access — add to your briefcase to read the full text and ask questions with AI

Daniel G. Albert, J.

On this motion," the petitioner seeks an order canceling a notice of pendency of an action, and an undertaking, filed with the court to discharge a mechanic’s lien. The application was commenced by notice of motion and petition, and served on the respondent’s attorney. The respondent claims that the service is defective, and that the proceeding must be initiated by an order to show cause in which the court directs the manner and time of service.

This court in Matter of Jericho Jewish Center v. Hibner (28 Misc 2d 458) did hold that an application of this type should be instituted by an order to show cause. However, there is no statutory provision which mandates this procedure. The cited case recognized this fact, and directed a renewal of the application by order to show cause because the ordinary notice of motion presumably did not come to the attention of the lienor, since no one appeared in opposition. While the procedure described in the Jericho Jewish Center case may be preferable, it is not mandatory particularly where actual notice of the application is received by the lienor, as in this case. It may also be noted that an ordinary notice of motion was utilized to discharge an undertaking without objection in Matter of Wilbraham Realty Corp. (212 App. Div. 304). Since the lienor here does not dispute that more than one year has elapsed from the date of filing the lien without it having been renewed or an action started thereon, it has ceased to be a valid lien. The motion is granted.

Cite This Page — Counsel Stack

Bluebook (online)

40 Misc. 2d 778, 243 N.Y.S.2d 371, 1963 N.Y. Misc. LEXIS 1630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/empress-gardens-inc-v-smith-town-water-co-nysupct-1963.

Opinion

Related

Cite This Page — Counsel Stack