Opinion
(1385) CA 01-01279
December 21, 2001.
(Appeal from Order of Supreme Court, Erie County, Mintz, J. — Lien Law.)
Robert G. Sillars, Clarence, for Appellants.
Getman, Biryla Kresse, L.L.P., Buffalo (Seth L. Hibbert of counsel), for Carmen S. Pariso, Inc. and another, respondents.
Phillips Lytle Hitchcock, Buffallo (Melissa Hancock Nickson of counsel), for GBH Paving, Inc., respondent.
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, KEHOE AND BURNS, JJ.
Order unanimously reversed on the law with costs and petition granted.
On this appeal by petitioners from an order denying their petition seeking to cancel and discharge three mechanics' liens filed against their property by respondents, the issue is whether the liens have lapsed by operation of law as a result of respondents' failure to obtain court orders extending such liens (see, Lien Law § 17), and whether Supreme Court thus erred in refusing to cancel and discharge such liens of record (see, Lien Law § 19). The underlying issue, one of first impression, is whether petitioners' property, which contains two single family residences, is "real property improved * * * with a single family dwelling" (Lien Law § 17). Based on the ordinary meaning of the article "a", other provisions of the Lien Law, and well-established canons of statutory construction, we conclude that the property is "improved * * * with a single family dwelling".
I
At all relevant times, petitioners have owned the subject property in the Town of Clarence. The property, known as 8320-8326 County Road, is a 5.4-acre parcel improved with two detached single family residences. It historically has been treated as a single parcel for tax purposes, now classified by taxing authorities as "Multiple Residences". Petitioners resided in the house at 8320 County Road beginning in 1968. Since building the house at 8326 County Road in the mid-1990's, petitioners have occupied it as their residence and have rented out the original house. Petitioners allege without contradiction that both houses have always been utilized by them and/or their tenants as "single family dwelling[s]." Respondents nonetheless label the property, or at least part of it, as "commercial", based on petitioners' plan in 1998 to sell part of their property to a commercial entity for an intended commercial use. In particular, petitioners negotiated the sale of one of the houses and its surrounding land to respondent GBH Paving, Inc. (GBH) and its related entity, Tricore Development Corp. (Tricore).
In anticipation of taking title, GBH and Tricore sought to improve the property by constructing an access road and parking lot for the movement and storage of heavy equipment used by GBH and Tricore in their construction businesses. Between August and November 1998, with petitioners' knowledge and approval, GBH and Tricore contracted or otherwise arranged for various aspects of that work to be done by the three respondents, none of which was paid for its work and each of which filed a notice of mechanics' lien against the property. Respondent Carmen S. Pariso, Inc. (Pariso) filed its notice of lien on December 15, 1998, as did its apparently related entity, respondent Swift River Associates, Inc. (Swift River). GBH filed its notice of lien on February 3, 1999. By their terms, all three liens encumber both houses and all of petitioners' land, as opposed to merely the house and land that petitioners intended to sell to GBH and Tricore. Before the proposed sale fell through, petitioners never officially subdivided the property or otherwise separated the "commercial" parcel to be sold from the parcel to be retained by them.
None of the lienors commenced a legal proceeding to foreclose its lien or to obtain a court order of extension within one year of filing its notice of lien. Rather, each purported to extend its lien by filing a notice of extension. Pariso and Swift River filed their notices of extension on December 15, 1999, and GBH filed its notice of extension on January 28, 2000.
II
In August 2000, petitioners sought an order "permanently canceling and discharging of record the said Mechanic[s'] Liens", pursuant to Lien Law §§ 17 and 19 (2). They argued that, because respondents did not obtain court orders within a year after filing their notices of lien, but rather improperly filed notices of extension, the liens had lapsed by operation of law.
In opposition, respondents argued that the Lien Law established no mechanism by which a court could summarily discharge a mechanic's lien in these circumstances. Respondents further argued that the subject property is not of the type described by Lien Law § 17, as it is "not improved, or to be improved, by a single family dwelling" and is not used "only * * * for single family dwelling purposes", but rather is classified by tax authorities as "Multiple Residences". Respondents further argued that the work performed by them "was not the type of work that is conducted for the construction of single family dwellings" and in fact "had nothing whatsoever to do with improvement to a single family dwelling." Respondents noted that the work was performed at petitioners' request and "in connection with the improvement of a section of the property to be sold by Petitioners to GBH for use in a commercial capacity."
Recently, Supreme Court (DeGrasse, J.) ruled in favor of the Campaign For Fiscal Equity plaintiffs after seven months of trial ( Campaign for Fiscal Equity v. State of New York, 187 Misc.2d 1).
Supreme Court denied the petition.
III
The issue is whether petitioners are entitled to cancellation and discharge of the liens pursuant to Lien Law § 19 based on respondents' failure to obtain court orders of extension pursuant to Lien Law § 17, or whether valid extensions of the liens could be obtained by respondents (thereby extending their time for commencing legal action to foreclose or extend the liens) simply by filing notices of extension. Resolution of that issue hinges on whether the subject property is "real property improved * * * with a single family dwelling". In that connection, Lien Law §§ 17 and 19 (2) variously provide for the "extinguish[ment]", "terminat[ion]", or "discharge" of a lien unless an action to foreclose such lien or to secure an order continuing it has been commenced within one year of filing of the notice of lien, or
"unless an extension to such lien, except for a lien on real property improved or to be improved with a single family dwelling, is filed with the county clerk * * * within one year from the filing of the original notice of lien, continuing such lien" (Lien Law § 17 [emphasis supplied]).
Lien Law § 17 further provides that "[a] lien on real property improved or to be improved with a single family dwelling only be extended by an order of a court of record, or a judge or justice thereof" (emphasis supplied). Because respondents did not obtain court orders of extension, their liens are subject to discharge (see, Lien Law § 19) unless the encumbered realty is not "real property improved * * * with a single family dwelling" (Lien Law § 17).
IV
Based on our reading of the statute, we conclude that petitioners are entitled to an order discharging the liens. At the outset, we reject respondents' contentions that this proceeding does not lie pursuant to Lien Law § 19 (6) and that petitioners, because of asserted deficiencies in their papers before Supreme Court, may not rely on other statutes as a basis for relief. Lien Law § 19 (6), which relates to discharge of a lien based on a defect in the notice of lien, has no application to this case. In their initiating papers, petitioners properly relied on Lien Law §§ 17 and 19 (2), which seemingly provide for the extinguishment, cancellation or discharge of a lien automatically or by operation of law, upon the lapse of the one-year period (see, Lien Law §§ 17, 19; Gallo Bros. Constr. v. Peccolo, 281 A.D.2d 811, 813; Green Elec. Contrs. v. SMG Constr., 279 A.D.2d 287; L M Plumbing v. Decker, 219 A.D.2d 619, 619-620, lv denied 87 N.Y.2d 806; Matter of Fidelity Deposit Co. of Maryland, 75 A.D.2d 707; Matter of Thirty-Fifth St. Fifth Ave. Realty Co., 121 App. Div. 625). Nevertheless, case law authorizes an application to vacate or cancel a mechanic's lien based on the lienor's failure to take the steps necessary to perfect it (see, Matter of Kushaqua Estates v. Bonded Concrete, 215 A.D.2d 993, 994; Matter of Onorati v. Testco Inc., 204 A.D.2d 876, 877; Matter of Cake Stylists v. Town Country Plumbing Heating, 197 A.D.2d 687, appeal dismissed and lv denied 83 N.Y.2d 795; Matter of Flintlock Realty Constr. Corp., 188 A.D.2d 532, 533; Modular Steel Sys. v. Avlis Contr. Corp., 89 A.D.2d 891; Matter of Malafsky v. Becker, 255 App. Div. 444, 445, appeal conditionally dismissed 280 N.Y. 685; Hanson Heating Plumbing v. Stout, 88 Misc.2d 241, 241-242; cf., Lien Law § 59).
Turning to the issue whether the encumbered property is "real property improved * * * with a single family dwelling" (Lien Law § 17), we reject respondents' contention that the property may be characterized as commercial in part or in whole. Respondents unduly emphasize that petitioners planned to sell part of their property to commercial entities that, in anticipation of sale, arranged for respondents to perform certain work on that parcel to equip it for eventual commercial use. Under the circumstances at bar, we conclude that the property may not be classified as commercial based either on the nature of the work performed or on an intended commercial use that never came to pass. Those considerations do not alter the undisputed fact that the property has at all times even during the period of construction — been used solely for residential purposes.
The crux of this case is whether property may be deemed "improved * * * with a single family dwelling" (Lien Law § 17) where it is improved with two single family dwellings. Lien Law § 17 does not define the phrase in question. Focusing on the article "a", which they construe as necessarily meaning "one and no more", respondents contend that the statute refers to one "single family dwelling" only, and not to multiple single family residences. They contend that for this Court to interpret the statute otherwise would constitute an impermissible judicial amendment of the statute "so as to enlarge its clearly defined scope and purpose" ( Raymond Concrete Pile Co. v. Federation Bank Trust, 288 N.Y. 452, 463, rearg granted 289 N.Y. 650, and original decision adhered to 290 N.Y. 611).
We reject that contention based on the ordinary meaning of the indefinite article "a". Although "a" may mean "one" where the overall tenor of the statute connotes such meaning, that is neither the usual meaning of the word generally, nor the most reasonable meaning of the word the particular circumstances and statutory language at issue here. Recognizing that a contrary interpretation of the article "a", if adopted generally, would lead to no end of absurd statutory constructions, those courts that have considered the issue have held that the usual and ordinary meaning of "a" is not "one and only one", but rather "any number of" or "at least one" — not "one and no more", but rather "one or more" ( see, Matter of Hotel St. George Corp., 207 N.Y.S.2d 529, 531, citing Lindley v. Murphy, 387 Ill. 506, 517, 56 N.E.2d 832 837-838; State v. Martin, 60 Ark. 343, 349-351, 30 S.W. 421, 422-423; cf., Lewis v. Spies, 43 A.D.2d 714, 715-716). For that reason, the article "a" generally is not to be read in the singular sense unless such an intention is clearly conveyed by the language and structure of the statute ( see, Matter of Hotel St. George Corp., supra, at 531, citing 1 CJS, A, p. 1; State v. Martin, supra, 60 Ark, at 349-351, 30 SW, at 422-423; see also, State ex rel. Cities Serv. Oil Co. v. Board of Appeals, 21 Wis.2d 516, 529, 124 N.W.2d 809, 816; Lindley v. Murphy, supra, 387 Ill, at 517, 56 N.E.2d, at 838; see generally, 97 N.Y. Jur 2d, Statutes, § 129). In view of that general understanding of the article "a", we cannot adopt the peculiar construction of the statute advanced by respondents, who insist that the liens are effective against both single family dwellings even though the liens plainly would be ineffective as against either of the dwellings. It must be concluded, therefore, that petitioners' property is "improved * * * with a single family dwelling" (Lien Law § 17), meaning at least one such dwelling.
Nor can we conclude from the language and structure of the Lien Law as a whole, particularly the definitional provision of Lien Law § 10 (former [1]), that "a" means "only one" single family residence. Lien Law § 10 (former [1]), like section 17, favors the owners of "real property improved or to be improved with a single family dwelling" (Lien Law § 10 [former (1)]). Although Lien Law § 17 does not define that phrase, section 10 (former [1]) provided when this dispute arose:
"[T]he term `single family dwelling' shall not include a dwelling unit which is part of a realty subdivision as defined in section eleven hundred fifteen of the public health law when at the time the lien is filed, the dwelling unit is owned by the developer for purposes other than his personal residence. * * * `[D]eveloper' shall mean and include any private individual, partnership, trust or corporation which improves five or more parcels of real property with single family dwellings pursuant to a common scheme or plan"
(Lien Law § 10 [former (1)] [emphasis supplied]). Clearly the Legislature's purpose in so defining "property * * * improved with a single family dwelling" is to include properties, such as petitioners' property, improved with up to four single family residences. Thus, the proper interpretation of Lien Law § 17, given the complementary and elucidating text of Lien Law § 10 (former [1]), is that "property improved * * * with a single family dwelling" means property improved with between one and four single family residences.
To the extent that plaintiffs contend that the State has failed to fulfill its constitutional obligations with respect to the provision of education in the school district, they present a justiciable controversy ( see, Board of Educ. v. Nyquist, supra, at 39, n 4; James v. Board of Educ., 42 N.Y.2d 357, 365).
Although Lien Law § 10 (former [1]) specifically provides that the foregoing definitional provisions are "[f]or purposes of this section", it does not provide that those definitions apply only to section 10 and to no other provision of the Lien Law. We cannot read Lien Law § 17 in isolation from section 10, as respondents would have us do. In referring in section 17 to "property * * * improved with a single family dwelling", the precise phrase used in section 10, the Legislature apparently intended to incorporate the same meaning set forth in section 10. Certainly that interpretation is preferable to respondents' assertion that those identical phrases have different meanings as employed in each of those two closely related sections. The fact that no different definition is supplied in or for the purposes of Lien Law § 17 "indicates that no departure from the statutory definition of that term was intended or implied" ( Matter of Gruber, 89 N.Y.2d 225, 234, citing McKinney's Cons Laws of NY, Book 1, Statutes §§ 74, 97). Moreover, "[i]t is elementary that `where the same word or phrase is used in different parts of a statute, it will be presumed to be used in the same sense throughout, and the same meaning will be attached to similar expressions in the same or a related statute' (McKinney's Cons Laws of NY, Book 1, Statutes § 236, at 401; see, Mangam v. City of Brooklyn, 98 N.Y. 585)" ( People v. Bolden, 81 N.Y.2d 146, 151; see, Riley v. County of Broome, 95 N.Y.2d 455, 466). "[A] statute or legislative act is to be construed as a whole, and * * * all parts of an act are to be read and construed together to determine the legislative intent * * * Not only are different parts of the same act interpreted together, but different acts which are in pari materia are to be construed with each in light of the other" (Comment, McKinney's Cons Laws of NY, Book 1, Statutes § 97; see, Matter of Town of Yorktown v. State Bd. of Real Prop. Servs., 275 A.D.2d 789, 790-791; see also, McKinney's Cons Laws of NY, Book 1, Statutes § 221).
"Where one section of a statute must be relied on to construe the intent of another, neither semantics nor literal interpretation of words and phrases [is] controlling; and sections of an act must be construed in view of all of the provisions of the act as well as the general purpose and manifest policy intended by the Legislature in the enactment.
The different parts of the same act, though contained in different sections, are to be construed together as if they were all in the same section".
The general principle that a statute must be construed as a whole and that its particular parts, provisions, or sections be considered together and with reference to each other ha[s] been applied in the construction of various particular statutes or enactments, as for example, * * * the Mechanic's Lien Law" (Comment, McKinney's Cons Laws of NY, Book 1, Statutes § 97).
Clearly, sections 10 and 17, being in pari materia, must be read together ( see, McKinney's Cons Laws of NY, Book 1, Statutes §§ 97, 98, 221). They are parts of a single legislative scheme designed to accord significant procedural protections and substantive preferences to owners of certain favored residential property. Lien Law § 10 (former [1]) shortens (from eight months to four) the time for filing a lien against certain residential property, as defined by the statute ( see generally, Matter of City of Albany Indus. Dev. Agency v. Degraff-Moffly/Gen. Contrs., 164 A.D.2d 20, 22; Ward-Carpenter Engrs. v. Sassower, 163 A.D.2d 304, 305; Metivier v. Sarandrea, 154 Misc.2d 355, 358, affd for reasons stated 187 A.D.2d 963), whereas Lien Law § 17 restricts the methods for obtaining extensions of liens against such residential property, in order to "limit the period of time [such] real property could be burdened by a mechanic's lien" ( Matter of Fidelity Deposit Co. of Maryland, supra, 75 A.D.2d, at 707). We thus conclude that, because petitioners' property falls within the scope of Lien Law § 10 (former [1]), it also falls within the scope of section 17.
Griffin Bldg. Constr. Corp. v. RHD Constr. Corp. ( 133 Misc.2d 335, 336-337) is not to the contrary. That decision predated the amendment of Lien Law § 10 defining "property * * * improved with a single family dwelling" as including a subdivision or housing development improved or under improvement by up to four single family residences ( see, L 1988, ch 335, § 1). Moreover, Griffin, unlike this case, concerns a lien filed against a subdivision or housing development described as a "collection of" "many single-family residences" ( Griffin Bldg. Constr. Corp. v. RHD Constr. Corp., supra, at 336).
Accordingly, the order should be reversed and the petition granted.