Opinion
July 31, 1995
Appeal from the Supreme Court, Kings County (Garry, J.).
Ordered that the order is affirmed, with costs.
The plaintiff, Outrigger Construction Company, Inc., commenced this action to foreclose a mechanic's lien on real property owned by Nostrand Avenue Development Corporation (hereinafter Nostrand) and on which the defendant Bank Leumi Trust Company of New York (hereinafter Bank Leumi) held a mortgage. The plaintiff had performed construction work on the property for Nostrand. However, Nostrand failed to fully pay the plaintiff for its labor and materials.
On October 26, 1990, the plaintiff filed a notice of a mechanic's lien in the amount of $68,480.46 on the real property in question. On November 21, 1990, the plaintiff served a notice of the lien on Nostrand in compliance with Lien Law § 11. On November 26, 1990, the plaintiff and Nostrand entered into a stipulation in which they agreed that the mechanic's lien would be discharged by the filing of a bond in the amount of $68,480.46. The plaintiff, however, did not file proof of service of the notice of the lien with the Kings County Clerk within 35 days after the filing of the notice of the lien as required by Lien Law § 11. The plaintiff contends that the stipulation between it and Nostrand, which was made within the 35-day period, obviates the need for filing proof of service of the notice of the mechanic's lien pursuant to Lien Law § 11.
The Supreme Court properly declared the mechanic's lien null and void and properly dismissed the complaint insofar as it is asserted against Bank Leumi. The plaintiff failed to file proof of service of the notice of the lien as required by the clear and unambiguous language of Lien Law § 11 (see, Matter of Podolsky v Narnoc Corp., 196 A.D.2d 593, 594-595). The "invalidation of the lien where proof of service is not filed is mandatory leaving no discretion in the court" (Matter of Northport Marina, 146 B.R. 60, 62 [ED NY]; Matter of Connecticut St. Dev. Corp. v. Garber Bldg. Supplies, 216 A.D.2d 561).
Further, the plaintiff cannot avoid the requirement of filing proof of service of the notice of the lien merely because the lien was discharged by the filing of a surety bond. The posting of a surety bond merely shifts the lien from its original adherence and attaches it to the substituted bond (see, Tri-City Elec. Co. v. People, 96 A.D.2d 146, 150, affd 63 N.Y.2d 969). To justify payment of the lien out of the bond, a valid lien must first be perfected. The filing of the bond, by itself, does not establish the validity or timely filing of the lien (see, Tri-City Elec. Co. v. People, supra, at 150).
We find the plaintiff's remaining contentions to be without merit. Rosenblatt, J.P., Copertino, Hart and Friedmann, JJ., concur.