Warebak Realty Corp. v. Enros Construction Corp.

39 Misc. 2d 298, 240 N.Y.S.2d 193, 1963 N.Y. Misc. LEXIS 2097

• Court: New York Supreme Court
• Decided: April 29, 1963
• Status: Published

Opinion

Harold J. Crawford, J.

Application by an owner of real property situate in Queens County pursuant to subdivision 5 of section 76 of the Lien Law to vacate a subcontractor’s request for a “ verified statement ” under subdivision 2 of section 76 of the Lien Law.

All of petitioner’s contentions are without merit save one, i.e., that relating to the sufficiency of the request.

Article S-A of the Lien Law (Lien Law, §§ 70-79) requires, inter alia, that funds received by an owner of real property, a contractor or a subcontractor in connection with an improvement of real property be held in trust for the payment of the claims of certain classes of persons designated beneficiaries. Section 76 provides for service by the trustee of a verified statement relative to the status of trust assets upon a beneficiary’s request. Subdivision 2 of such section provides in part that the request shall contain ‘ ‘ a description of the improvement of real property * * * sufficient to identify it and to identify the trust

Although the request constituting the basis of this application contains a description of the real property both by street address and by section number and block number on the land map of the County of Queens, it does not identify the “ improvement ”.

The court can conceive of the existence of two or more improvements upon the same real property with resultant separate trusts. Consequently, it is disposed to require strict compliance with the portion of the statute requiring a description of the particular improvement.

The application is, therefore, granted without prejudice to respondent’s service of a new request in accordance with subdivision 2 of section 76 of the Lien Law.