Calendar Date: March 30, 2018Before: McCarthy, J.P., Clark, Mulvey, Aarons and Rumsey, JJ.__________Peter B. O’Connell, Albany, for appellant.Law Offices of Rudolph J. Meola, Albany (Rudolph J. Meolaof counsel), for Nissan Motor Acceptance Corp., respondent.__________Clark, J.Appeal from a judgment of the Supreme Court (Platkin, J.),entered October 18, 2016 in Albany County, which partiallygranted petitioner’s application, in a proceeding pursuant toLien Law § 201-a, to declare a lien of respondent All CountyTowing to be null and void.On December 22, 2015, at the direction of local lawenforcement, respondent All County Towing (hereinafterrespondent)1 towed a vehicle to its facility. Shortlythereafter, respondent mailed — by certified mail, return receiptrequested — a notice to the owner of the vehicle and topetitioner, a lienholder, advising that it had taken custody ofthe vehicle as a result of police impound, that storage fees wereaccruing daily and that once the vehicle was released from policeimpound, it could be retrieved “upon full payment of all chargesaccrued” as of the date of release. In April 2016, by order toshow cause and petition, petitioner commenced this specialproceeding to, among other things, declare respondent’s lien nulland void. Upon the posting of a $10,000 bond, respondentreleased the vehicle to petitioner.Respondent subsequently joined issue and asserted, as anaffirmative defense, that it had fully complied with therequirements of the Lien Law and was entitled to a lien in theamount of $6,501.51, which included $200 for towing, $5,750 for115 days of storage, an administrative fee and taxes. SupremeCourt granted the petition to the extent of adjudging that thepurported lien for storage was invalid, dismissed the petition tothe extent of declaring that respondent had a valid lien fortowing and ordered that, upon petitioner paying respondent the$200 charge for towing, the asserted lien would be satisfied, allstays terminated and the bond released. Respondent now appeals.2Initially, we reject respondent’s assertion that SupremeCourt should not have addressed petitioner’s argument that thenotice of lien did not comply with the statutory requirements setforth in Lien Law § 184 (5) on the basis that petitioner firstraised such argument in its reply affirmation. While argumentsmay not be properly raised for the first time in a replyaffirmation (see 10 Cardinal Lane, LLC v N.K.T. LandAcquisitions, Inc., 117 AD3d 1133, 1136 n 2 [2014]; Potter v BlueShield of Northeastern N.Y., 216 AD2d 773, 775 [1995]), a reviewof the petition reveals that petitioner did in fact raise theissue in its petition by stating that respondent “failed toprovide the notices required” under Lien Law § 184 (5).Accordingly, the question of whether respondent complied with thestatutory requirements was properly before Supreme Court.As to the merits, we agree with Supreme Court thatrespondent’s purported lien for storage was invalid. Pursuant toLien Law § 184 (5), where an entity seeks to assert a lien forthe storage of a motor vehicle that it has towed and stored atthe direction of a law enforcement agency, such entity must “mailby certified mail, return receipt requested, a notice . . . toevery person who has perfected a security interest in such motorvehicle or who is listed as a lienholder upon the certificate oftitle . . . within [20] days of the first day of storage.” Underthe statute, which must be strictly construed (see Matter of AllyFin. Inc. v Oakes Towing Serv., Inc., 130 AD3d 1355, 1356 [2015];Grant St. Constr., Inc. v Cortland Paving Co., Inc., 55 AD3d1106, 1107 [2008]; Phillips v Catania, 155 AD2d 866, 866 [1989]),the “notice shall include the name of the null providingstorage of the motor vehicle, the amount being claimed for suchstorage, and [the] address and times at which the motor vehiclemay be recovered” (Lien Law § 184 [5]). In addition, “[t]henotice shall also state that the null providing such noticeclaims a lien on the motor vehicle and that such motor vehicleshall be released upon full payment of all storage chargesaccrued on the date the motor vehicle is released” (Lien Law§ 184 [5]).Here, the notice — which was mailed to petitioner bycertified mail, return receipt requested — included respondent’sname, address and regular business hours, as well as the totalamount being claimed for storage. The notice further stated thatthe vehicle would “be released to the owner thereof, or his orher lawfully designed [sic] representative upon full payment ofall charges accrued to the date that the said motor vehicle isreleased.” Fatally, however, the notice did not state, asrequired, that respondent “claim[ed] a lien” on the vehicle (LienLaw § 184 [5]). The word “lien” does not appear in the notice atall. Moreover, we are not persuaded by respondent’s contentionthat the requirement was satisfied by the language indicatingthat the vehicle would be released “upon full payment of allcharges.” Strictly construed, Lien Law § 184 (5) requires thatthe notice state both that respondent “claims a lien on the motorvehicle and that such motor vehicle shall be released upon fullpayment of all storage charges accrued on the date the motorvehicle is released” (emphasis added). Accordingly, as thenotice failed to state that respondent claimed a lien on thevehicle, Supreme Court properly found that respondent failed tocomply with all of the essential statutory requirements of LienLaw § 184 (5) and, thus, that the purported notice of lien wasinvalid (see Lien Law § 184 [5]; compare Matter of Ally Fin. Inc.v Oakes Towing Serv., Inc., 130 AD3d at 1357).McCarthy, J.P., Mulvey, Aarons and Rumsey, JJ., concur.ORDERED that the judgment is affirmed, with costs.ENTER:Robert D. MaybergerClerk of the Court
