Hui's Realty, Inc. v. Transcontinental Construction Services, Ltd.

168 A.D.2d 302

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 1990
• Status: Published

Opinion

Order Order and judgment (one paper) of the Supreme Court, New York County (Karla Moskowitz, J.), entered on August 30, 1990, which, inter alia, granted the petition seeking an order discharging a mechanic’s lien, unanimously affirmed, without costs. Order of the same court entered on August 20, 1990, which denied respondent’s motion for a stay pending appeal and directed each party to post a bond in connection with a related arbitration, unanimously affirmed, without costs.

Lien Law § 11 requires a party to serve a notice of lien on the owner, and expressly states that failure to file proof of service within 35 days after the notice of lien is filed shall terminate the notice as a lien. The record at bar supports the IAS court’s determination that the respondent did not file such proof of service. The language of Lien Law § 11 is clear and unambiguous. Although a court may disturb a harsh disposition that is not authorized by the statute (see, e.g., Tewari v Tsoutsouras, 75 NY2d 1; Kolb v Strogh, 158 AD2d 15), no such leniency is authorized where, as here, the result is mandated by the statute. Concur—Kupferman, J. P., Sullivan, Milonas, Rosenberger and Kassal, JJ. [See, 147 Misc 2d 1086.]