Summary
affirming order as to determination that validity of mechanic's lien was to be decided by court
Summary of this case from Sure-Shock Elec. v. Diamond Lofts VentureOpinion
February 8, 1971
In an action by a subcontractor to foreclose a mechanic's lien, defendant Canin Construction Co., the general contractor, appeals from so much of an order of the Supreme Court, Kings County, dated December 8, 1969, as, after denying a motion of defendant Jimden Realty Corp., the property owner, to stay an arbitration proceeding between it and Canin, provided that the issue as to the validity and excessiveness of the mechanic's lien which Canin had filed is reserved to the court, to be determined after completion of the arbitration proceeding and prior to the entry of any judgment based upon the determination in arbitration. Order modified by deleting therefrom the provision barring the entry of judgment based upon the determination in arbitration prior to the determination by the court of the issue of the validity and excessiveness of Canin's mechanic's lien. As so modified, order affirmed, without costs. The cross claim of the property owner, Jimden, against Canin raised the issue of the validity of the mechanic's lien filed by Canin, based upon Jimden's assertion that the lien was willfully exaggerated. In the posture of this record we do not now find it necessary to pass on the rights of the parties in connection with that mechanic's lien (but see Lien Law, §§ 39, 39-a, 44). There is, however, no reason to stay entry of a judgment based upon the outcome of the arbitration between Jimden and Canin, as that arbitration proceeding involved Canin's claim for work, labor and services and not the validity of Canin's mechanic's lien. Canin's right to enter a judgment based upon the arbitration award affects a substantial right; and the order is therefore appealable (cf. Consolidated Airborne Systems v. Silverman, 23 A.D.2d 695; Kolar v. Rusiecki, 18 A D 665; Gilbert v. Case, 3 A.D.2d 930; CPLR 5701, subd. [a], par. 2, cl. [v]). Rabin, P.J., Shapiro, Christ and Benjamin, JJ., concur.