Tech Heating and Mechanical Inc. v. First Downstream Service Corp., 126 Misc.2d 85, 481 N.Y.S.2d 201 (N.Y.Sup., Apr 25, 1984) (NO. 18224/82)

Supreme Court, New York County, New York,Special Term, Part I.
TECH HEATING AND MECHANICAL INC., Plaintiff,v.FIRST DOWNSTREAM SERVICE CORP. and Steven Organization Inc., d/b/a 23rdAssociates, a partnership, 44 West 23rd Street Tenants Corp., 450 West 23 rdStreet Tenants Corp., 465 West 22nd Street Tenants Corp., 469 West 22 nd StreetTenants Corp., Central Federal Savings & Loan Association of Nassau County,Citibank, N.A., and Al-El Construction Corp., Defendants.

April 25, 1984.

 Subcontractor sought to foreclose its lien against various parcels of real property, and moved to amend its complaint to add causes of action for breach of contract and to amend its notice of lien, and defendants moved to dismiss the cause of action.   The Supreme Court, Special Term, New York County, Martin B. Stecher, J., held that:  (1) alleged misdescription of the property in the notice of lien did not warrant dismissal;  (2) failure of subcontractor to name owner of some parcels in the notice of lien required dismissal of the foreclosure action on those parcels;  (3) subcontractor's designation of a partner, rather than the partnership, as owner of the other parcels warranted dismissal of the action, as allowance of an amendment nunc pro tunc to list the partnership as owner would prejudice those to whom the property had been transferred after filing of the notice of lien;  but (4) subcontractor was allowed to amend the complaint to set forth the proposed breach of contract causes of action.
 Motion to amend the complaint granted, motion to amend notice of lien denied, and lien foreclosure action dismissed.

West Headnotes
[1] Mechanics' Liens  284257k284 Most Cited Cases
Alleged misdescription of property in notice of lien did not warrant dismissal of action seeking foreclosure of the lien, where all affected parcels were properly described by street address and, at time of filing of the notice, confusion of "section" and "block" was corrected to show such designations properly.  McKinney's Lien Law §  9, subd. 7.
[2] Mechanics' Liens  158257k158 Most Cited Cases
An amendment cannot be utilized when the "owner" originally named in a notice of lien is not shown to have any interest whatever in the realty at time the notice was filed.  McKinney's Lien Law §  9, subd. 2.
[3] Mechanics' Liens  284257k284 Most Cited Cases
Failure of subcontractor to name an owner of parcels of real property against which it filed a notice of lien required dismissal of action seeking foreclosure of the lien on those parcels, where subcontractor named as owner an organization that was a partner in a partnership which owned the realty at one time but which had conveyed the parcels to other owners prior to date the notice of lien was filed.  McKinney's Lien Law §  9, subds. 2, 7.
[4] Mechanics' Liens  57(1)257k57(1) Most Cited Cases
A partner is not an "owner" within meaning of the Lien Law, even though a partner is a tenant in partnership, since the partner is not designated by the Lien Law as an owner and its interest as a partner is not subject to execution for the partner's debts.  McKinney's Lien Law §  2, subd. 3;  McKinney's Partnership Law §  51, subd. 2(c). 
[5] Mechanics' Liens  158257k158 Most Cited Cases
[5] Mechanics' Liens  284257k284 Most Cited Cases
Lien foreclosure action was required to be dismissed on ground that lien claimant had designated a general partner, rather than the partnership, as owner of the parcels involved, where the parcels had been transferred after filing of the notice of lien, and allowance of an amendment nunc pro tunc to list the partnership as owner would prejudice the transferees.  McKinney's Lien Law § §  2, subd. 3, 9, subds. 2, 7, 12-a.
[6] Mechanics' Liens  276(2)257k276(2) Most Cited Cases
Subcontractor seeking foreclosure of its mechanic's lien was entitled to amend the complaint to set forth proposed breach of contract causes of action, even though the lien foreclosure action was required to be dismissed.  McKinney's CPLR 3025(b). **202 *85 Rudes, Schatz & Maguire, Lynbrook, for plaintiff.
 Kirschenbaum & Kirschenbaum, Garden City, for Al-El Const. Corp., defendant.
 Max E. Greenberg, Cantor & Reiss, New York City, for First Downstream Service Corp., Steven Organization, 23rd Associates, defendants.


 MARTIN B. STECHER, Justice:
 Plaintiff, in various motions, seeks to amend its complaint [CPLR 3025(b)] to add causes of action for breach of contract, and to amend its notice of lien [Lien Law §  12-a].
 The plaintiff was a subcontractor in the renovation of 8 parcels of land on West 22nd Street and West 23rd Street, New York City.   A single notice of lien against all 8 parcels was filed on March 18, 1982.   The defendants move to dismiss the cause of action, seeking foreclosure of the lien.
 [1] The alleged misdescription of the property is no basis for dismissal.  All of the parcels are properly described by street address;  and, at the time of filing, it is apparent that the confusion of "section" and "block" was corrected to show such designations properly [Lien Law §  9 subd. 7].
 [2][3] The description of the "owner" [Lien Law §  9 subd. 2] is another matter.   The owner is designated as "Steven Organization Inc." Steven is a partner in 23rd Associates, the owner, at *86 one time of all of this realty.   On September 1, 1981, when according to the notice of lien, plaintiff began its work, 23rd Associates had already conveyed four of the parcels of record to other owners, who are not named in the notice of lien. An amendment [Lien Law §  12-a] cannot be utilized when the "owner" originally named in the notice of lien is not shown to have any interest whatever in the realty at the time the notice was filed [Application of Sbarro Holding Corp. v. Lamparter Acoustical Products, Ltd., 87 Misc.2d 556, 386 N.Y.S.2d 920].  A complete failure to name an owner [Lien Law §  9 subds. 2 and 7] requires dismissal of the foreclosure action on those parcels [Contelmo's Sand & Gravel, Inc. v. J & J Milano, Inc., 96 A.D.2d 1090, 467 N.Y.S.2d 55].
 As to the remaining parcels in which 23rd Associates has an ownership interest, the question is:
 (a) Whether or not a general partner is an "owner" within the meaning of the statute [Lien Law §  2, subd. 3];
 (b) Whether such a notice is subject to amendment [Lien Law §  12-a];  and
 (c) Whether amendment will result in prejudice.
 [4] A partner is not designated an "owner" by Section 2 subdivision 3, nor is its interest as a partner subject to execution for the partner's debts [Partnership Law §  51 subd. 2(c)].  Even though a partner **203 is a "tenant in partnership" the partners are thus not an "owner" within the meaning of Lien Law, Section 2 subdivision 3.
 [5] In the absence of prejudice, it would seem appropriate to allow amendment where one of two general partners was named and served.   As it appears that since the filing of the notice of lien all remaining parcels have been transferred, allowance of an amendment nunc pro tunc to list 23rd Associates, the owner, would prejudice the transferees.
 [6] Accordingly, the lien foreclosure action is dismissed;  the motion to amend the notice of lien is denied;  and plaintiff's motion to amend the complaint is granted to the extent only of allowing plaintiff to serve promptly an amended complaint setting forth the three proposed breach of contract causes of action.
481 N.Y.S.2d 201, 126 Misc.2d 85
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