In re Schiavone Construction Co.

181 A.D.2d 580

Opinion

— Order, Supreme Court, New York County (Stanley Parness, J.), entered February 26, 1991, which denied petitioner’s application to compel respondent to foreclose its lien or show cause why it should not be vacated and cancelled pursuant to Lien Law § 21-a, unanimously affirmed, with costs.

The IAS court did not abuse its discretion in denying petitioner’s application as premature, since, in compliance with the statute, respondent presented a valid reason why the lien should not be vacated and cancelled, namely, that the amounts subject to the lien were not yet due and payable, and, although the statute permitted the lien to be filed before payment was due, it could not be foreclosed before that date (Matter of Delaware Towers v Siegfried Constr. Co., 41 Misc 2d 227). We would also note that there being no defect upon the face of the lien, its validity can only be tested upon the trial of an action for foreclosure (Dember Constr. Corp. v P & R Elec. Corp., 76 AD2d 540, 546). Concur — Milonas, J. P., Rosenberger, Kupferman, Ross and Smith, JJ.