L & L Painting Co. v. Columbia Sussex Corp.

225 A.D.2d 670, 639 N.Y.2d 491, 639 N.Y.S.2d 491, 1996 N.Y. App. Div. LEXIS 2645

Opinion

The appellant asserted a cross claim and a counterclaim for foreclosure of its own mechanic’s lien when it was named as a defendant in this action, as it was required to do (see, Lien Law § 44 [5]). The amended notice of pendency filed by the plaintiff continued the appellant’s mechanic’s lien (see, Lien Law § 17). The appellant, a plaintiff for purposes of its own claims (see, CPLR 3019 [d]), is, therefore, a proper party to seek an extension of the plaintiff’s amended notice of pendency in order to preserve its own mechanic’s lien, which would otherwise terminate (see, CPLR 6513; Lien Law § 19 [2]; Gebhardt v Charleston Chems., 133 NYS2d 764).

The appellant demonstrated good cause for the extension (see, CPLR 6513). The plaintiff promptly filed a note of issue when it obtained a one-year extension of its amended notice of pendency. However, 11 months later, the Supreme Court had not yet scheduled a trial date, necessitating the appellant’s mo tion for a further extension of the amended notice of pendency. There is no evidence in the record that the delay was attributable to the appellant (see, Tomei v Pizzitola, 142 AD2d 809). Consequently, the amended notice of pendency is extended for another year (see, Stassou v Casini & Huang Constr., 203 AD2d 357). Balletta, J. P., Thompson, Pizzuto and Altman, JJ., concur.