Leven Betts, Ltd. v. Mack

102 A.D.3d 840, 958 N.Y.S.2d 461

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 2013
• Status: Published

Opinion

In an action to foreclose a mechanic’s lien, in which the defendant lienor ACE Electrical Contracting, Inc., asserted a cross claim against the defendant Christiane C. Mack to foreclose its mechanic’s lien in the principal sum of $14,016.88, the defendant lienor ACE Electrical Contracting, Inc., appeals from an order of the Supreme Court, Kings County (Vaughan, J.), entered May 2, 2012, which denied its motion to “restore” its cross claim and to extend a notice of pendency.

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the appellant’s motion which was to “restore” the cross claim, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

That branch of the appellant’s motion which was to extend the notice of pendency was properly denied, as the appellant failed to show good cause to extend the notice of pendency (see CFLR 6513; Hall v Piazza, 260 AD2d 350 [1999]; see also Matter of Malafsky v Becker, 255 App Div 444 [1938]).

However, the expiration of the notice of pendency did not foreclose the appellant from pursuing a cross claim for damages (cf. M. Paladino, Inc. v Lucchese & Son Contr. Corp., 247 AD2d 515 [1998]). The matter was marked “disposed” by the clerk of the court on the ground that the main action was settled. Since the cross claim was not settled, and there was no order by the court dismissing the cross claim, it should have been restored (see Cadichon v Facelle, 18 NY3d 230 [2011]). Mastro, J.P., Dickerson, Sgroi and Hinds-Radix, JJ., concur.