This is an application by the petitioners for an order of this Court summarily discharging of record a Notice of Mechanics Lien filed by the respondents against their real property. The petitioners make their application pursuant to Lien Law §§59, 19 and 9.

The respondents have filed an Affidavit in Opposition to the petitioners' motion. The respondents' opposition is based on the Lien Law §§59, 10, Article 2, and relies on the decisions of Schenectady Mun. Housing Authority v. Keystone Metals Corp. [1997 3d Dept.] 245 App. Div. 2d, 665 NYS2d 744, app. den [1998] 92 NY2d 804, 677 NYS2d 779. The respondents further rely on the decision and holding of S A F La Sala Corp. v. S & H 88th Street Associates [1988, 1st Dept.] 138 App. Div. 2d 241, 525 NYS2d 206, for the proposition that the requirement of Article 3, Section 59 of the Lien Law that the lienor commence an action to enforce the lien within thirty(30) days of receipt of the requisite notice rests within the sound discretion of the Court. The respondents also rely on the decision and holding of Application of Empress Apartments, Inc. [1960] 26 Misc2d 495, 203 NYS2d 972, for the proposition that, " Section 59 is not a statute of limitation and the lien does not fall by non compliance with the notice and failure to start the action to enforce the lien within the time prescribed thereby, it being the duty of the Court to consider the equities of the case and to exercise, where proper, its power to excuse the lienor for not commencing the action within the time fixed."

The petitioners have submitted a reply to the respondents' Affidavit In Opposition. [*2]In the petitioners' Reply Affidavit, it refutes the respondents' statement that the parties were in negotiations subsequent to the initial filing and service of the Notice of Lien or after the service by the petitioners' of the Notice pursuant to Lien Law §59. The petitioners' attorney's Affirmation, in the Reply, attempts to clarify and distinguish the case before the Court and those cited by the respondents.

The Court after a review of all the motion papers, exhibits and the pertinent law makes the following decision and order.

The petitioners' make two separate arguments to the Court in their motion papers for an order of the Court summarily discharging of record a Notice of Mechanics Lien filed by the respondents. The first argument is that on June 10, 2004, the petitioners caused to be duly served on the respondents a Notice pursuant to Lien Law §59 requiring the respondents to commence an action to enforce said lien on or before July 29, 2004, which was more than thirty(30) days after the service of petitioners notice on the respondents pursuant to Lien Law §59, and evidenced by a proper Affidavit of Service of the notice. Further, that more than thirty(30) days had elapsed since the petitioners had served such Notice and the respondents lienors had not commenced any action to enforce said lien. That as a result of the respondents failure to commence an enforcement action, said lien has been discharged or cancelled of record, i.e. by operation of law.

The petitioners' second argument which the Court finds to be more of a jugular issue, is the failure of the respondents' Notice of Lien to comply with the provisions as set forth in section 9 [sic] of the Lien Law of the State of New York, in that lienor failed to file said Notice of Lien within the four(4) month statute of limitation. The petitioners' Exhibit "C" on the motion is a copy of a letter from the general contractor, an Anthony Farella, Inc. ,addressed to the petitioners dated August 11, 2003. Said exhibit states:

"Dear Paul,

Please be advised that Allied/All-City Plumbing & Environmental Services Inc. was last at your home to perform any work on February 28, 2003.

(Emphasis Add)

Please contact me if you have any further questions."

The petitioners argue, based on this exhibit "C", "If the lienor wanted to avail itself of the Lien Law, lienor was required to file a Notice of Claim within four(4) months after they were last present [performed] on the premises which would have been no later than June 28, 2003. As such the petitioners assert that, the Notice of Lien filed August 4, 2003, is defective and must be discharged and cancelled of record".

The respondents argue in their Affidavit in Opposition to the petitioners' motion, that the petitioners' attorney (and we can reasonably assume the petitioners) relies on a copy [petitioners' Exhibit C] of the unsupported self-serving letter of the general contractor indicating that February 28, 2003 was the last time the respondents' employees were at the subject matter premises. The respondents argue further, that the statute relating to the time period within which to file the Notice of Lien provides: "within four(4) months after completion of the contract (emphasis added) or the final performance of the work." The respondents argue, that the completion of the contract at the petitioners' single family house did not occur until after the plumbing inspector for the Town of Hempstead signed off on the job which sign off did not occur until April 1, 2003. Furthermore, the respondents argue, the filing on August 4, 2003, in this case, was therefore, a mere three(3) days beyond a strict construction of the time period set forth in the statute, and thereby, being a valid lien, should remain of record.

The respondents' second argument, which addresses the petitioners' first argument on the motion and is more in the nature of an equitable argument rather than an argument on the law, is that the petitioners' omitted to mention in their moving papers that they did not pay the general contractor for the services rendered by the respondents and did not pay the respondents, and that the respondents would be unjustly enriched in the event the Court should discharge the lien and not allow the respondents an opportunity to foreclose the lien. The respondents argue also that the lien represented their only remedy to collect the monies due for the work performed. Finally, the respondents argue, that subsequent to the service of the petitioners' within notice which is the subject of this motion, the petitioners and the respondents' entered into settlement negotiations and that the respondents relied on these alleged settlement negotiations, and therefore, did not proceed with an action to foreclose the lien within the requisite time period.

In addressing the petitioners' second argument with respect to Lien Law §10, Filing of Notice of Lien, the respondents argue that the pertinent section is section10 Article 2 and not section 9 as cited by the petitioners. Further, the respondents' counsel argues that §10 Article 2 sets forth, that the notice of lien may be filed within four(4) months after completion of the contract. That completion of the scope of the work and completion of the contract with regards to the case before the Court, would not have occurred until the applicable governmental authority, i.e., the plumbing inspector for the Town of Hempstead had signed off and approved the work of the respondents. Furthermore, respondents counsel argues, the contract provided for approval by the plumbing inspector, and the subcontractor could rely on that approval provision as the completion date of the contract. Finally, the respondents' counsel argues, that in this case the approval of the plumbing inspector took place on April 1, 2003, and therefore, the August 4, 2003 lien filing by the respondents was timely. The defendant cites Schenectady Mun. Housing Authority v. Keystone Metals Corp;, supra , as its authority for the latter proposition.

In revisiting the petitioners' first argument with respect to the respondents non compliance with the notice served on it pursuant to Lien Law §59, the respondents' rely [*3]on S A F La Sala Corp. v. S & H 88th Street Associates, supra , for the legal holding that Section 59 of the Lien Law is neither mandatory nor a statute of limitations for non compliance. The respondents contend that it is the duty of the Court to exercise its discretion after considering the equities and circumstances of each case. Application of Empress Apartments, Inc., supra .

CONCLUSION

In addressing the petitioners' first argument, and the respondents' second argument, the Court finds that Lien Law §59 [Vacating of a mechanics' lien] provides for a party to make an application to the Court for an order to vacate and cancel a lien of record by a Notice of Lien filed by a mechanic or lienor against the moving party's real property as well as the cancellation of a bond, and return of a deposit, by order of the Court. Although the language of the statute states: " *** Such notice shall require the lienor to commence an action to enforce the lien, within a time specified in the notice, not less than thirty days from the time of service, or show cause at a special term of a Court of record..."., the Court finds the statute is permissive and not mandatory or compulsory. Lien Law §59 provides the Court with discretion to granting an order to vacate the lien pursuant to Lien Law § 19 (3). In re Rosen, 13 NYS2d 1019, 1020 [1939]. Despite the grant of thirty(30) days for the commencement of an enforcement action by the lienor, the statute is neither a statute of limitations for such commencement, nor does it operate by law after the thirty(30) days has expired and the responent has not complied, but places discretion in the Court as to whether such order will be granted. In re Rosen, supra at 1019; In the Matter of Lasa Corp. v. Sherwood, 27, Misc2d 495, 496, 203 NYS2d 731, 732-733 [1960]. The Court has the discretion and duty to consider the equities of the case before it, and has the power to excuse the lienor for not commencing the action in the time specified in the notice. Application of Empress Apartments, Inc, 26 Misc2d 852, 853-854, 203 NYS2d 972, 974 [1960].

In the case at bar, the Court finds upon a review of all the papers and exhibits on the motion that pursuant to Lien Law §10 Article 1, a notice of lien may be filed [where the improvement is related to real property improved or to be improved with a single family dwelling] "***the notice of lien may be filed at any time during the progress of the work and the furnishing of the materials, or within four months after the completion of the contract, or the final performance of the work, or the final furnishing of the materials, dating from the last item of work performed or materials furnished ***". Lien Law §10 Article1. In the case before this Court, the petitioners on the motion offers exhibit "C" which is a letter from the general contractor stating:

"Dear Paul,

Please be advised that Allied/All City Plumbing & Environmental Services Inc. was last at your home to perform

any work on February 28, 2003.

(Emphasis Add)

Please contact me if you have any further questions."

The petitioner argues, that in view of this letter and exhibit from the general contractor stating February 28, 2003 was the last date of its performance, the respondent had four(4) months from February 28, 2003 to file its lien pursuant to Lien Law §10 Article 1, i.e., by June 28, 2003. The petitioner argues further, that the respondents filed the pending lien on August 4, 2003. Finally the petitioners' argue, that the August 4, 2003 filing renders the respondents' lien defective, and therefore, the petitioner moves the Court to issue an order vacating and cancelling the lien pursuant to Lien Law §§10.

The respondents argue that the time to file the lien in the instant case was when the plumbing inspector of the Town of Hempstead had signed off and approved the work of the respondents. The respondents cites to Schenectady Mun. Housing v. Keystone Metals Corp.,supra , as it authority. The respondent argues further, that if requirements regarding formalities of acceptance of construction, such as filing of certificate of acceptance, are specified in contract [sic], they must be allowed as set forth, and subcontractor may rely on those provisions in deciding when to file notice of lien. Schenectady Mun. Hous. Auth. v. Keystone Metals Corp., supra . Furthermore, the respondents argue, since the plumbing inspection by the Town of Hempstead plumbing inspector, in the case at bar, occurred on April 1, 2003, the respondents had substantially complied with the statue by filing the lien on August 4, 2003.

The Court finds that the lienor has the evidentiary burden of setting forth the validity of its notice of lien, and that it was timely filed (see, Brescia Construction Co., Inc. v. Walart Construction, Co., Inc., 238 A.D. 360, 363, 264 N.Y.S. 862, 865 [1933]). The Court finds S A F La Sala Corp. v. S & H 88th Street Associates as cited by the respondents inapplicable to the case at bar. The latter case primarily concerns the vacatur of an undertaking where there was inadequate notice to the owner. As with respect to Schenectady Mun. Hous. Auth. v. Keystone Metals Corp., supra , that case was concerned with an express contract with a public authority which involved a contract provisions requiring to the formal acceptance of the work and service performed as well as the completion of the contract. Here, the respondents who have the burden of proving the validity of the notice of lien and that it was timely filed, (see, Brescia Construction Co. v. Walart Construction Co., supra ), have neither produced a copy of a contract between it and the general contractor nor between the general contractor and the petitioners providing for a formal acceptance, approval or contract termination date. Absent the appropriate evidentiary proof, the Court must rely on the affidavits and exhibits submitted on the motion. Further, in as much as the petitioners have offered an exhibit setting forth the last date of performance by the general contractor and its workers, and the respondents have not offered any evidence as to the last date of its performance, the Court is compelled to find that February 28, 2003 was the last date of the respondents/ lienors' performance at the subject premises, and that June 28, 2003 would have been the last date within four [*5]months of last performance by the respondents to file its lien with respect to the petitioners' real property. The Court finds, that since the respondents' lien was filed on August 4, 2003, it was 37 days beyond the statutory period allowed by Lien Law §10 Article 1.

Lien Law § 10 Article 1 operates as a statute of limitations for the filing of a lien. City of Albany Indus. Development Agency v. DeGraff-Moffly/General Constr., Inc., 164 AD2d 20, 22, 562 N.Y.S. 821, 822 [1990]; EFCO Corp. v. U. W. Marx, Inc., 124 F. 3d 394 [1997]. Consequently, the respondents' lien filed August 4, 2003, 37 days beyond June 28, 2003 is invalid pursuant to Lien Law §10 Article 1; (see, Brescia Construction Co., Inc. v. Walart Construction Co., Inc., supra ).

With respect to the respondents' allegation of the parties being engaged in settlement negotiation after the service of the petitioners' Notice to enforce the lien, the Court rejects this allegation as lacking merit especially in view of the petitioners' sworn affidavit contained in its Reply. That branch of the petitioners' motion seeking to vacate the lien pursuant to Lien Law §§59 and 19 are denied. However, that branch of the petitioners' motion seeking vacatur and cancellation of the respondents' lien pursuant to Lien Law § 10 article 1 is granted with respect to the petitioners' real property located at 304 Colony Street, West Hempstead, Nassau County, New York.

This constitutes the decision and order of this Court.

So ordered:

DISTRICT COURT JUDGE

Dated: November 15, 2004

cc:Goldfarb & Goldfarb

Helfer & Helfer LLP