The motion by defendant 3536 Cambridge Avenue, LLC ("Cambridge") for an order pursuant to CPLR §3211(a)(1) dismissing the first cause of action of the complaint filed by plaintiff Danica Plumbing & Heating, LLC n/k/a Danica Group, LLC's ("Danica") complaint which seeks foreclosure of Danica's mechanic's lien and the termination of said mechanic's lien, is granted.

Danica performed certain construction on property owned by Cambridge at 3536 Cambridge Avenue, Bronx, New York, Block 5791, Lot 402. The work was completed on October 16, 2007, at a total cost of $1,374,493.00. On November 2, 2007, Danica filed a mechanic's lien in the amount of $153, 798.00 against the property for the remaining amount due and owing. The general contractor on the November 2, 2007 lien is listed as 3536 Cambridge Mews, LLC.

On December 26, 2007, Danica filed a complaint and a notice of pendency in an attempt to foreclose on the November 2, 2007 lien ("original lien"). Subsequent to commencing the foreclosure action, Danica realized that the general contractor on the original lien was incorrectly identified. Danica attempted to cure the defect by filing an amended lien on February 1, 2008 ("amended lien"), which correctly identified the general contractor as 915 East 107th Restaurant Corp., n/k/a Meridian Contracting Corp. In addition, Danica filed and served a supplemental summons and amended complaint and notice of pendency referencing the amended lien.

Cambridge contends that the amended lien is invalid. Cambridge asserts that Danica should have made a Lien Law § 12-a application to amend the original lien. Danica opposes the motion and argues that it was not required to submit an application for an amendment of the lien nunc pro tunc under Lien Law § 12-a. Danica argues that the mechanic's lien designated an [*2]"amendment" is a valid successive lien.

On a CPLR § 3211(a)(1) motion to dismiss, a defendant must demonstrate that the documentary evidence proffered definitively resolves all issues of fact, thereby resulting in the failure of plaintiff's claim as a matter of law. Fortis Fin. Servs., LLC v. Fimat Futures USA, Inc., 290 AD2d 383 (1st Dept. 2002); Robinson v. Robinson, 303 AD2d 234, 235 (1st Dept. 2003). The complaint should be liberally construed in favor of the plaintiff. Robinson, 303 AD2d at 235.

Generally, Lien Law §12-a, which dictates amendments to mechanic's liens, is applicable once the eight month time period following the completion of work and final delivery of materials has expired. See, AJ Contr. Co. v. Farmore Realty, 3 Misc 3d 1110A (NY Sup. Ct. 2004); See also, Lien Law § 10. A successive lien may be filed to cure an irregularity in an earlier lien as long as it is filed within the eight month period prescribed by Lien Law § 10. See, Madison Lexington Venture v. Crimmins Contr. Co., 159 AD2d 256, 257 (1st Dept. 1990). It is not necessary that the preceding lien be discharged before a valid successive lien may be filed. See, T.A. Maloney Contracting Corp. v. William E. Blume, Inc., 85 Misc 2d 838, 839 (NY Sup. Ct. 1976). Additionally, contrary to Cambridge's assertions, the fact that Danica denominated the successive lien as an amended lien is of no legal consequence. See, Madison, 159 AD2d at 256.

However, Danica's reliance on Madison and AJ Contr. Co. is misplaced. In those cases, plaintiffs filed a successive lien before commencing a foreclosure action, whereas plaintiff herein filed its amended/successive lien after commencing the foreclosure action. See, Madison, 159 AD2d at 256; AJ Contr. Co., 3 Misc 3d 1110A. Plaintiff has cited to no authority to support its position that a plaintiff may file a successive lien to cure an irregularity after having commenced a foreclosure action based on a defective lien. Therefore, this court cannot treat the amended lien as a successive one and plaintiff's amendment to the lien was not permissible.

Moreover, it is well established that a court may only cancel or discharge a mechanic's lien in accordance with Lien Law § 19(6). See, Supreme Plumbing Co. v. Seadco Building Corporation, Inc., 224 A.D. 844 (2d Dept. 1928); Matter of Cohen, 209 A.D. 413 ( 2d Dept. 1924); Lien Law § 19. Lien Law § 19(6) states, in part, that a mechanic's lien may be discharged or canceled when the notice of lien is invalid due to failure to comply with Lien Law § 9. Lien Law § 19(6).

Danica's original lien is jurisdictionally defective and void, since the proper general contractor was not named or served notice in violation of Lien Law § 9(3); a defective notice cannot be cured by an amendment of the lien nunc pro tunc. Bran Elec., Inc. v. MHA, Inc., 269 AD2d 231 (1st Dept. 2000); Tri Quality Mechanical Corp. v. Chappastream Corp., 138 AD2d 610, 611 (2d Dept. 1988); Lien Law § 9(3). Therefore, pursuant to Lien Law § 19(6)Danica's defective original lien is discharged for failure to comply with the requirements of Lien Law § 9. [*3]

Accordingly, Cambridge's motion to dismiss the first cause of action in plaintiff's complaint is hereby granted.

Movant is directed to serve a copy of this order with notice of entry upon the plaintiff and file proof thereof with the clerk's office.

This constitutes the decision and order of the court.

Date: July 22, 2008

J.S.C.