Kuhn v. Kober

203 A.D.2d 536, 612 N.Y.S.2d 948

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 25, 1994
• Status: Published

Opinion

—In an action to foreclose a mechanic’s lien, the defendant Arthur Kober appeals, as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Jiudice, J.), entered July 15, 1992, as denied his motion to dismiss the complaint for failure to state a cause of action.

Ordered that the order is affirmed insofar as appealed from, with costs.

The appellant property owner sought dismissal of the plaintiffs action to foreclose a mechanic’s lien on the ground that there was no privity of contract between the parties. However, it is well settled that "a material[person] or subcontractor is not required to be in contractual privity with the property owner in order to foreclose a mechanic’s lien” (Regal Lbr. Co. v Buck, 157 Misc 2d 376, 378; see also, Rainbow Elec. Co. v Bloom, 132 AD2d 539; Hartman v Travis, 81 AD2d 692). Accordingly, since the plaintiffs action sought only the foreclosure of its lien, and did not assert any cause of action based upon a contractual relationship between the parties, the Supreme Court properly denied the motion to dismiss. Bracken, J. P., Copertino, Altman and Friedmann, JJ., concur.