Poughkeepsie Iron & Metal Co. v. Ermco Erectors, Inc.

79 Misc. 2d 142, 359 N.Y.S.2d 634, 1974 N.Y. Misc. LEXIS 1601

• Court: New York Supreme Court
• Decided: September 19, 1974
• Status: Published

Opinion

W. Vincent Grady, J.

The contractor petitioner, by order to show Pause, seeks an order pursuant to subdivision 5 of section 76 of the Lien Law vacating the demand of Ermco Erectors, Inc., respondent lienor. The contractor contends that by perfecting a mechanics’ lien, the lienor has elected to pursue this remedy and is therefore precluded under article 3-A of the Lien Law in serving a demand for a verified statement.

The movant cites Hall v. Blumberg (26 A D 2d 64), in support of its contention and further claims that the lienor’s interests are fully protected by .the bond filed herein by the contractor. The movant’s reliance on the Hall case is misplaced. That case has a completely different set of circumstances and does not hold that the lienor, by filing a lien, is restricted from pursuing trust fund remedies.

In Matter of Radory Constr. Corp. v. Arronbee Constr. Corp. (24 A D 2d 573) a trust fund beneficiary was held entitled to verified statements setting forth trust entries even though its lien was bonded. The lienor may pursue both its trust fund remedy and its ordinary remedies in enforcing the lien (Matter of Philip, Inc. v. Langella, 285 App. Div. 1038).

Accordingly, the motion is denied in all respects.

Submit order on notice.