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Carl A. Morse, Inc. v. Rentar Indus. Dev. Corp.

Carl A. Morse, Inc. v. Rentar Indus. Dev. Corp.

Supreme Court of New York, Appellate Division, Second Department

January 24, 1977

No Number in Original

Opinion

 [*30]  [**426]   In an action to foreclose certain mechanics' liens, and for other related [***3]  relief, the appeal is from an order of the Supreme Court, Queens County, which denied appellants' motion for partial summary judgment dismissing the first cause of action. We affirm.

Under date of May 15, 1972, the plaintiff and defendant Rentar Industrial Development Corporation (Rentar) entered into a written contract for the construction of a warehouse in Queens County, New York, pursuant to which plaintiff, "the contractor", as "agent for the owner", agreed "to arrange for  [*31]  all [of] the labor and materials and [to] do all [of] the things necessary for the proper construction and completion of the * * * [contemplated] building". Rentar, as "owner", agreed to compensate plaintiff in accordance with an agreed schedule of payments, whereupon the work was commenced.

Subsequently, and within the time limited by statute (Lien Law, § 10), plaintiff caused to be filed against the premises four separate mechanics' liens, totaling in excess of $ 1,000,000, for work, labor and services rendered pursuant to the agreement. When a dispute as to payment arose, plaintiff commenced this action, inter alia, to foreclose its liens, whereupon defendants moved for summary [***4]  judgment dismissing the first (foreclosure) cause of action on the following two grounds: (1) that plaintiff, having contracted and performed as defendants' agent, was not a valid lienor and (2) that article 2 of the Lien Law is unconstitutional insofar as it purports to authorize the filing of a mechanic's lien without prior notice or the opportunity to be heard, thus constituting an impermissible taking of property without due process of law.

The Special Term rejected the latter contention, sustained the constitutionality of the statute and found a triable issue of fact as to plaintiff's lienor status. We are in complete agreement therewith.

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56 A.D.2d 30 *; 391 N.Y.S.2d 425 **; 1977 N.Y. App. Div. LEXIS 10015 ***

Carl A. Morse, Inc., Respondent, v. Rentar Industrial Development Corp. et al., Appellants, et al., Defendants

Prior History:  [***1]  Appeal from an order of the Supreme Court at Special Term (Moses M. Weinstein, J.), entered February 9, 1976 in Queens County, which denied a motion by defendants-appellants for partial summary judgment.

Disposition: Order of the Supreme Court, Queens County, dated February 6, 1976, affirmed, with $ 50 costs and disbursements.

CORE TERMS

notice, lienor, notice of lien, deprivation, lien law, mechanic's lien, contractor, seizure, real property, liens, garnishment, materialman's lien, prejudgment, special term, due process, cases, significant property interest, provisions, sequestration, grounds, invalidation, attachment, vacated, wages, deprivation of property, due process requirement, opportunity to be heard, procedural due process, three-Judge, foreclose

Real Property Law, Liens, Nonmortgage Liens, Mechanics' Liens, Business & Corporate Compliance, Perfections & Priorities, Civil Procedure, Pleading & Practice, Lis Pendens, Notice of Lis Pendens, Contracts Law, Personal Property, Bona Fide Purchasers, Contracts Law, Types of Contracts, Construction Contracts, Priorities & Recording, Lis Pendens