NORBERTO SONS, INC. v. COUNTY OF NASSAU DEPARTMENT OF PUBLIC WORKS

Thursday, February 21, 2002

Supreme Court

Nassau County

Justice Lally

NORBERTO & SONS, INC. v. COUNTY OF NASSAU DEPARTMENT OF PUBLIC WORKS ” Upon the foregoing papers, it is ordered that this motion by plaintiff for an order pursuant to Lien Law ?§21(2)(a) dismissing its first cause of action is granted. Cross-motion by defendant Clover Construction Corp. for an order pursuant to CPLR 3217(b) fixing the terms of dismissal of plaintiff’s first cause of action is granted to the extent provided herein.

This is an action in which plaintiff seeks to foreclose on a public improvement lien, and in its second cause of action seeks to recover for work, labor, services and materials allegedly supplied to and on behalf of defendant Clover Construction Corp. The plaintiff’s lien was filed on or about July 1, 1998. The summons and complaint were filed on September 1, 1998. In its answer dated September 22, 1998, defendant Clover Construction Corp. interposes a claim for plaintiff’s wilful exaggeration of the lien. Discovery proceeded accordingly.

Plaintiff did not file a Notice of Pendency, i.e. lis pendens, with the Nassau County Controller as required by Lien Law ?§18, nor did it seek an extension of time in which to do so. Therefore, this court lacks jurisdiction over plaintiff’s first cause of action. (Lien Law ?§?§18, 21[2]; CLG, Inc. v. BAT-JAC Contracting, Inc., 230 AD2d 701; Tri-City Elec. Co. v. People, 96 AD2d 146, 150, affd, 63 NY2d 969). In fact, where a required lis pendens is not filed, “[t]he statute is self-operative and the lien is discharged without further order or action.” (Yaphank Development Co., Inc. v. Heller, 150 Misc2d 620, citing, White v. McLean & Sons, Inc., 235 AD2d 342). This is so even though the lien may be bonded. (Tri-City Elec. Co. v. State, supra; C LG, Inc. v. BAT-JAC Contracting, Inc., supra; see also, Riverhead Transit Mix Corp. v. Walsh Constr. Co., 1995 WL 1051649).

Defendant Clover Construction Corp. alleges that as a result of plaintiff’s lien and this action, it has incurred attorney’s fees and bond premiums. Sanctions are accordingly sought. Furthermore, it maintains that the dismissal of its wilful exaggeration claim is not required.

Defendant Clover Construction’s wilful exaggeration claim must be dismissed. Wilful exaggeration claims like that alleged by defendant Clover Construction may only be advanced in an action to enforce a mechanic’s lien, i.e., a foreclosure action. (Wellbilt Equip. v. Fireman, 275 AD2d 162, 166). In fact, damages for wilful exaggeration claims may only be recovered where the lien is declared void for that reason. (Wellbilt Equip. v. Fireman, supra, at p. 166). Where, like here, the lien is discharged prior to trial, the action becomes one for breach of contract. (Wellbilt Equip. v. Fireman, supra, at p. 166).

Defendant Clover Construction characterizes as frivolous the plaintiff’s continued maintenance of this action after its lien was automatically extinguished due to its failure to file a lis pendens. Defendant Clover Construction accordingly seeks to recover its litigation and bond expenses as sanctions pursuant to 22 NYCRR ?§130-1.1. The dismissal of plaintiff’s lien claim was automatic; no motion was necessary. Moreover, defendant Clover Construction could have simply and expeditiously sought a declaration via a motion. In any event, plaintiff still advances its second cause of action and defendant has not made any distinction between costs incurred by it relative to the first and second causes of action. Recovery of the expenses defendant Clover Construction incurred on account of this litigation are accordingly denied. However, plaintiff is entitled to discharge of its undertaking and the surety. (Bat-Jac Contracting, Inc. v. Italia Construction Company, 262 AD2d 314). Thus, so much of its motion which seeks an order pursuant to CPLR 3217(b)(2) is granted.