Opinion
March 8, 1961
William M. Mullooly for Lyla Mussler and another, defendants.
Margiotta Margiotta for plaintiff.
This is a motion to dismiss a complaint in an action to foreclose a mechanic's lien on the ground it is barred by the Statute of Limitations.
Actually no statute is involved but rather an order of the court which disposed of a former motion to discharge the lien under section 59 Lien of the Lien Law, by allowing an additional 15 days to commence the action where it was shown that process had been issued but not served due to inability to locate the owner, the very same persons who were making the motion.
Now that they have been found and served, this motion is made for an alleged failure to comply with the order (erroneously assimilated to a Statute of Limitations) on the ground that all necessary parties as defined in section 44 Lien of the Lien Law were not also served within the 15 days and that no lis pendens was filed as required by section 17.
Aside from the fact that prior mortgagees are not necessary parties, even as to persons who are necessary parties, it is they who have not been served who may complain, not those who have been served. Of course when the one not served is the owner, the action is not worth much, but nevertheless the dismissal is confined to the person not served. (See L. Davidson Inc. v. Bellows, 254 App. Div. 703; Martens v. O'Neill, 131 App. Div. 123. )
Even more to the point however, are the observations made in Matter of Cohen ( 209 App. Div. 415) to the effect that section 59 is not a Statute of Limitations and that it was an abuse of discretion for Special Term not to have allowed additional time to commence the action and that the liberal construction of the Lien Law enjoined by section 23, requires that a lienor not be deprived of his lien by unnecessarily strict and technical construction.
It should be noted in passing that the order in this case which was made by the undersigned deliberately eliminated therefrom all requirements for service on "all necessary parties".
If the owner really wants an early trial of the issues, there is nothing to prevent same as soon as he wishes.
Motion denied.