Shehadi v. Aetna Casualty & Surety Co.

Appellate Division of the Supreme Court of New York

Shehadi v. Aetna Casualty & Surety Co.

59 A.D.2d 1030, 399 N.Y.S.2d 772, 1977 N.Y. App. Div. LEXIS 14315

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 4, 1977

StatusPublished

Cited by3 cases

This text of 59 A.D.2d 1030 (Shehadi v. Aetna Casualty & Surety Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shehadi v. Aetna Casualty & Surety Co., 59 A.D.2d 1030, 399 N.Y.S.2d 772, 1977 N.Y. App. Div. LEXIS 14315 (N.Y. Ct. App. 1977).

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Opinion

Order and judgment unanimously reversed, on the law and the facts, without costs, motion denied and action dismissed. Memorandum: Aetna Casualty and Surety Company (Aetna) appeals from a judgment recovered against it on a surety bond. The action was commenced by a motion for summary judgment in lieu of a complaint (CPLR 3213). In a related action by respondent against the M. S. A. Enterprises, Inc. (M. S. A.), reported in our memorandum decided herewith (59 AD2d 1031), respondent succeeded in securing an in personam judgment against M. S. A. for a balance due on a contract for materials and labor. Subsequent to the completion of the [1031]*1031services he rendered under the contract, respondent filed a mechanic’s lien and M. S. A. secured a bond from Aetna to discharge the lien. After respondent entered his judgment against M. S. A., he brought the instant action on the bond. The bond provided that Aetna would "pay any judgment which may be rendered against the property for the enforcement of said lien” (emphasis added). Thus, respondent’s recovery was predicated on the validity of the mechanic’s lien which he filed. In the memorandum in Shehadi v M. S. A. Enterprises, we held that the lien was defective, for it had not been filed within four months from the date of "the last item of work performed and the furnishing of the materials” (Lien Law, § 10). Although the trial court in Shehadi v M. S. A. Enterprises found that the filing of the lien was timely, the judgment granted by the court gave no effect to that finding (with which we disagree) and provided solely for the in personam judgment for the balance due under the contract. This judgment cannot be satisfied out of the bond written by Aetna by reason of the failure of respondent to prove that he had a valid and enforceable mechanic’s lien. In the circumstances the judgment was improperly granted and is therefore reversed. (Appeal from order and judgment of Onondaga Supreme Court— summary judgment.) Present—Marsh, P. J., Moule, Denman, Goldman and Witmer, JJ.

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Order and judgment unanimously reversed, on the law and the facts, without costs, motion denied and action dismissed. Memorandum: Aetna Casualty and Surety Company (Aetna) appeals from a judgment recovered against it on a surety bond. The action was commenced by a motion for summary judgment in lieu of a complaint (CPLR 3213). In a related action by respondent against the M. S. A. Enterprises, Inc. (M. S. A.), reported in our memorandum decided herewith (59 AD2d 1031), respondent succeeded in securing an in personam judgment against M. S. A. for a balance due on a contract for materials and labor. Subsequent to the completion of the [1031]*1031services he rendered under the contract, respondent filed a mechanic’s lien and M. S. A. secured a bond from Aetna to discharge the lien. After respondent entered his judgment against M. S. A., he brought the instant action on the bond. The bond provided that Aetna would "pay any judgment which may be rendered against the property for the enforcement of said lien” (emphasis added). Thus, respondent’s recovery was predicated on the validity of the mechanic’s lien which he filed. In the memorandum in Shehadi v M. S. A. Enterprises, we held that the lien was defective, for it had not been filed within four months from the date of "the last item of work performed and the furnishing of the materials” (Lien Law, § 10). Although the trial court in Shehadi v M. S. A. Enterprises found that the filing of the lien was timely, the judgment granted by the court gave no effect to that finding (with which we disagree) and provided solely for the in personam judgment for the balance due under the contract. This judgment cannot be satisfied out of the bond written by Aetna by reason of the failure of respondent to prove that he had a valid and enforceable mechanic’s lien. In the circumstances the judgment was improperly granted and is therefore reversed. (Appeal from order and judgment of Onondaga Supreme Court— summary judgment.) Present—Marsh, P. J., Moule, Denman, Goldman and Witmer, JJ.

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Bluebook (online)

59 A.D.2d 1030, 399 N.Y.S.2d 772, 1977 N.Y. App. Div. LEXIS 14315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shehadi-v-aetna-casualty-surety-co-nyappdiv-1977.

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