By supplemental summons and complaint filed on September 13, 2011, plaintiff J. B. CUSTOM MASONRY & CONCRETE, INC., a general contracting company, alleges that on January 11, 2010, it contracted with defendant Kim Sutera to provide labor and materials for remodeling and alterations on the plaintiff's home located at 133-01 Rockaway Beach Boulevard, Queens County, New York. The construction contract price was $377,000 of which the defendant paid $313,852.50, leaving a balance due of $63,147.50. Plaintiff claims that he performed all agreed upon work and is entitled to payment of the agreed upon price. Plaintiff filed a Notice of Pendency on August 23, 2011 and Notice of Mechanic's Lien in the amount of $63,147.50 on May 19, 2011. The complaint asserts two causes of action, one seeking monetary damages for breach of contract for construction and improvements to the defendant's home and the second for foreclosure of the mechanic's lien.

Defendant, Kim Sutera claims that the plaintiff performed sub-standard work and as a result Ms. Sutera terminated plaintiff's services in February 2011 and hired a new general contractor to repair the plaintiff's prior work.

Defendant served a verified answer on May 7, 2012 containing four separate counterclaims and 22 affirmative defenses. The defendant's counterclaims include breach of contract, breach of implied warranties, fraud and for a declaratory judgment that the mechanic's lien is void. Plaintiff served a reply to counterclaims on June 27, 2012.

The "Notice Under Mechanic's Lien Law" states that the total amount claimed for which the lien was filed was $63,147.50 based upon materials furnished including roofing, custom bricks, and waste containers. The mechanic's lien was filed on May 19, 2011. The notice of pendency was filed against the defendant's property located at 133-01 Rockaway beach Blvd, Belle Harbor, New York, on June 23, 2011.

Defendant now moves for an order permitting the defendant to file a Surety Bond (Bond Discharging Mechanic's Lien) in the required sum of $69,462.25, representing 110% of the sum and amount of the mechanic's lien previously filed with the County Clerk and upon the filing of the surety bond, which has already been obtained by the defendant, granting an order discharging and cancelling the mechanic's lien filed by the plaintiff. A copy of the "Bond to Discharge Mechanic's Lien," dated January 14, 2014, issued by SureTec Insurance Company is annexed to the defendant's [*2]motion papers. Defendant also seeks to have the Notice of Pendency discharged and cancelled and seeks to have the second cause of action for foreclosure of the mechanic's lien dismissed as the Surety Bond will be interposed in place of defendant's real property sought to be foreclosed against.

Citing Lien Law § 19(4), defendant contends that the Court may discharge a mechanic's lien where the defendant has executed a bond for 110% of the lien amount and delivered such bond to the plaintiff and the County Clerk. As stated above, the defendant is in possession of the original "Bond to Discharge Mechanic's Lien" dated January 28, 2014, issued by SureTec Insurance Company, Bond No. 3349830 in the amount of $69,462.25. A copy of the Bond is annexed to the motion papers and has been served upon the plaintiff.

Counsel also contends that if the Court finds that the mechanic's lien has been properly bonded by the defendant and the mechanic's lien thereafter, properly discharged, then the cause of action for foreclosure of the mechanic's lien can no longer lie and should be dismissed (citing Ren. Reh. Sys. Co., Inc. v Faulkner, 85 AD3d 752 [2d Dept. 2011] Marple v Sorg, 230 AD2d 858 [2d Dept. 1996]).

Defendant also asserts that the Notice of Pendency has been filed against the subject property solely as a result of the mechanic's lien and should the mechanic's lien be discharged as a result of the Surety Bond than the judgment would no longer effect the title to or the possession use or enjoyment of the defendant's real property and therefore the notice of pendency must be cancelled (citing Tiger Riverdale, Inc. v Tiger Dale, Inc., 47 AD3d 441 [1st Dept. 2008]). Counsel asserts that if the second cause of action to foreclose on the mechanics lien is dismissed then any final judgment obtained in this matter would not affect the title to the defendant's real property.

In opposition, plaintiff's counsel states that pursuant to Lien Law § 19(4) the bond is not yet effective as there was no proof submitted by the defendant that the bond has been filed with the County Clerk. Further, counsel cites several cases to the effect that even where the mechanic's lien has been bonded, the plaintiff must still obtain a judgment to foreclose the lien although the judgment will be enforced against the bond rather than the property (citing Martirano Constr. Corp. v Briar Contracting Corp., 104 AD2d 1028 [2d Dept. 1984] Worlock Paving Corp. v Camperlino, 222 AD2d 1097 [4th Dept. 1995] C.S. Behler, Inc. v Daly & Zilch, Inc., 277 AD2d 1002 [4th Dept. 2000]Romar Sheet Metal, Inc. v F.W. Sims, Inc., 8 Misc 3d 1021(A) [*3][Sup. Ct. NY Cty. 2005]). Counsel also argues that the notice of pendency should likewise not be cancelled because even with the lien bonded, there is still a viable cause of action against the property based upon the cause of action to foreclose on the mechanics lien.

Upon review and consideration of the defendant's motion, plaintiff's affirmation in opposition and the defendant's reply thereto, this court finds that the defendant's motion to discharge the mechanic's lien filed against the defendant's property is granted.

Pursuant to Lien Law § 19(4), a mechanic's lien is discharged if the owner or contractor executes a bond or undertaking from a surety authorized to do business in New York in an amount equal to 110% of the lien amount (see Sanco Mech., Inc. v DKS Gen. Contrs. & Constr. Mgrs., Inc., 34 AD3d 271 [1st Dept. 2006]). Here, the defendant has obtained a Surety Bond to Discharge a Mechanic's Lien from SureTec Insurance Company, having an office and principal place of business in the State of New York, dated January 28, 2014, in the amount of $69,462.25 which is hereby approved and may be filed in the Office of the County Clerk as the Surety Bond is in compliance with the requirements of Lien Law § 19(4).

Accordingly, it is hereby,

ORDERED, that immediately upon presentment of a copy of this order together with the Surety Bond issued by Suretec Insurance Company dated January 28, 2014, and payment of all appropriate fees, the Queens County Clerk is directed to file the Surety Bond and the County Clerk shall cancel and discharge the Notice of Mechanics Lien filed by the plaintiff in this matter against defendant Kim Sutera and property located at 133-01 Rockaway Beach Boulevard, Queens County, New York on May 19, 2011, and it is further,

ORDERED, that the Queens County Clerk is directed to discharge and cancel the Notice of Pendency of Action filed by the plaintiff against the real property known as 133-01 Rockaway Beach Boulevard, Belle Harbor, New York, filed in the Office of the County Clerk on August 23, 2011 (see White Plains Sash & Door Co. v Doyle, 262 NY 16 [1933][upon defendant's posting of the bond, plaintiff's mechanic's lien detached from the defendant's realty and attached to the bond. The action brought to foreclose the lien, thus, becomes an action to test the validity of the lien, had it not been discharged, and, if found valid, to procure a judgment upon the undertaking, rather than a [*4]judgment of foreclosure against the real estate] Lindt & Sprungli USA, Inc. v PR Painting Corp., 292 AD2d 610 [2d Dept. 2002][when a lien is discharged by the filing of an undertaking, the lien is shifted to the undertaking and the filing of a notice of pendency is unnecessary and is, in fact, prohibited by statute]), and it is further,

ORDERED, that the branch of the defendant's motion to dismiss the second cause of action to foreclose on the mechanic's lien is denied (see Martirano Constr. Corp. v Briar Contracting Corp., 104 AD2d 1028 [2d Dept. 1984][although the property itself was released from the lien, for plaintiff to be entitled to recover, it must commence a formal action for the enforcement of the lien and obtain a judgment as if the lien still existed. Such judgment should then contain a provision directing the surety to pay the amount found due upon the lien] Worlock Paving Corp. v Camperlino, 222 AD2d 1097 [4th Dept. 1995] Romar Sheet Metal, Inc. v. F.W. Sims, Inc., 8 Misc 3d 1021(A)[Sup. Ct. NY Cty. 2005] ["Lien Law § 19 provides that in an action to foreclose a mechanic's lien that has been bonded, the plaintiff must still obtain a judgment to foreclose the lien, although such judgment will be enforced against the bond rather than the property" ]).

Dated: April 7, 2014

Long Island City, NY

____________________

ROBERT J. MCDONALD

J.S.C.