In the Matter of Navillus Tile, Inc.,, Respondent,v.LC Main, LLC, Appellant.BriefN.Y.October 10, 2013To be Argued by: GAYLE A. ROSEN (Time Requested: 30 Minutes) Westchester County Clerk’s Index Nos. 13324/10 and 13325/10 Appellate Division–Second Department Docket Nos. 2010-08721, 2010-11676, 2011-02658 and 2011-02661 Court of Appeals of the State of New York In the Matter of the Application of NAVILLUS TILE, INC., doing business as NAVILLUS CONTRACTING, Respondent, – against – LC MAIN, LLC, Appellant. For an Order Pursuant to Lien Law Section 17 of the Lien Law continuing a Certain Notice Under Mechanic’s Lien Law against Premises known as 221 Main Street, Tower B, White Plains, New York, Section 125067, Block 7, Lot 7. BRIEF FOR RESPONDENT RABINOWITZ & GALINA, ESQS. Attorneys for Respondent 94 Willis Avenue Mineola, New York 11501 Tel.: (516) 739-8222 Fax: (516) 739-8225 Date Completed: April 3, 2013 COURT OF APPEALS OF THE STATE OF NEW YORK ---------------------------------------------------------------------X In the Matter of the Application of: Appellate Division Docket Nos. NAVILLUS TILE INC. 2010-08721 d/b/a NAVILLUS CONTRACTING, 2010-11676 2011-02658 Lienor-Respondent, 2011-02661 -against- CORPORATE DISCLOSURE LC MAIN, LLC, STATEMENT Owner-Appellant, For An Order Pursuant to Lien Law Section 17 of the Lien Law continuing a Certain Notice Under Mechanic’s Lien Law against Premises known as 221 Main Street, Tower B, White Plains, New York, Section 125067, Block 7, Lot 7. ---------------------------------------------------------------------X Pursuant to the Rules of Practice of the New York Court of Appeals Lienor-Respondent Navillus Tile Inc. d/b/a Navillus Contracting states that Navillus is a corporation duly organized and existing pursuant to the laws of the State of New York and that it has no parents or subsidiaries. Dated: April 1, 2013 Mineola, New York Rabinowitz & Galina, Esqs. Attorneys for Lienor-Respondent Navillus Tile Inc. ___________________________ By: Michael M. Rabinowitz Gayle A. Rosen 94 Willis Avenue Mineola, New York 11501 (516) 739-8222 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . i PRELIMINARY STATEMENT . . . 1 QUESTIONS PRESENTED . . . 5 STATEMENT OF FACTS, PROCEDURAL HISTORY AND BACKGROUND FACTS . . . 7 JURISDICTIONAL STATEMENT . . . 10 LEGAL ARGUMENT . . . 10 I The Filing Of An Ex Parte Application To Extend A Mechanic’s Lien Prior To The Expiration Of Said Mechanic’s Lien Is Sufficient To Preserve The Lienor’s Mechanic Lien Rights Pursuant to Lien Law §17 . . . 10 II A Mechanic’s Lien May Be Extended Nunc Pro Tunc When the Application Therefor Is Timely Filed 13 III The Second Department Was Correct In Reversing The Supreme Court And Allowing The Mechanic’s Lien Extension Nunc Pro Tunc Pursuant to Lien Law §17 On the Grounds That The Applications Had Been Timely Filed . . . 20 IV CPLR §2004 MAY BE USED TO EXTEND A NOTICE UNDER MECHANIC’S LIEN LAW NUNC PRO TUNC WHEN THE APPLICATION IS TIMELY FILED BUT THE COURT FAILS TO CONSIDER THE APPLICATION PRIOR TO THE EXPIRATION OF THE MECHANIC’S LIEN . . . 21 V THERE IS NO UNCERTAINTY SURROUNDING THE VALIDITY OF NAVILLUS’ MECHANIC’S LIENS . . . 24 CONCLUSION . . . 25 TABLE OF AUTHORITIES CASE LAW Alyea v. Citizens’ Savings Bank, 57 N.E. 1103 (1900) . . . 19 Aztec Window & Door Mfg. Inc. v. 71 Village Road, LLC, 875 N.Y.S.2nd 628 (2nd Dept., 2009) . . . 11 Bianchi Constr. Corp. v. D’Egidio, 165 Misc.2d 973, 975 (Sup. Ct., Kings Co. 1995) . . . 9, 24 Binghamton Masonic Temple v. Armor El. Co., 186 AD2d 338 (3rd Dept. 1992) . . . 8, 9, 11, 24 Matter of the Application of Bruzzese Home Imp., LLC, Supreme Court, Westchester County, Index No. 13644/06 . . . 14, 16, 17 CA Construction, Inc., Supreme Court, Westchester County, Index No. 27782/09 . . . 17 Matter of Carassavas v. New York State Dept. of Social Servs., 456 N.Y.S.2d 217 (3rd Dept. 1982) . . . 23 Contelmo’s Sand & Gravel v. J&J Milano, 96 AD2d 1090 (2nd Dept. 1983) . . . 8 Grafton Construction Co., Inc., Supreme Court, Bronx County, Index No. 260048/09 . . . 17 H.M. Hughes Co. v. Carmania Corp., 187 AD2d 287 (1st Dept. 1992) . . . 9, 23, 24 Krenzer v. Town of Caledonia, 634 N.Y.S.2nd 927 (Sup. Ct., Monroe, Cty., 1995) . . . 12 Lynch v. Betts, 812 N.Y.S.2nd 312 (Sup. Ct., Yates Cty., 2006) . . . 12 i Madison Lexington Venture v. Crimmins Contr. Co., 159 AD2d 256 (1st Dept. 1990) . . . 9, 24 Makovic v. Aigbogun, 41 AD 3d 342 (1st Dept. 2007) . . . 8, 13, 14, 19 In Re Manton, 136 N.Y.S. 597 (2nd Dept., 1912) . . . 11 MDM Construction, Inc., Supreme Court, Westchester County, Index No. 25883/08 . . . 18 Peace v. Zhang, 789 N.Y.S.2nd 362 (4th Dept., 2005) . . . 12 Matter of Powers v. Foley, 267 N.Y.S.2d 459 (2nd Dept. 1966) . . . 23 Tewari v. Tsoutsouras, 549 N.E.2d 1143 (1989) . . . 22 Thermal Design, Inc. v. Gorman, 617 N.Y.S.2nd 1016 (Sup. Ct., Rockland Cty., 1994) . . . 11 Tri-City Electric Co., Inc. v. People, 468 N.Y.S.2d 283 (4th Dept. 1983) . . . 19 Zanders Co., Supreme Court, Westchester County, Index No. 19731/08 . . . 18 Zoerb and Company, Inc. v. Young Fire Equipment Co., 521 N.Y.S.2d 585 (4th Dept., 1987)… 11 STATUTES CPLR §2004 . . . passim LIEN LAW §17 . . . passim ii Lienor-Respondent Navillus Tile, Inc. d/b/a Navillus Contracting (“Navillus”), by its attorneys, Rabinowitz & Galina, Esqs., respectfully submits this Brief in opposition to the appeal of Owner-Appellant LC Main, LLC (“LC Main”) herein. LC Main appeals from the unanimous Decision and Order of the Appellate Division, Second Judicial Department (“Second Department”) dated and entered on September 12, 2012 (the “Decision and Order”) which reversed Orders issued by the Supreme Court, Westchester County (the “Supreme Court”) denying Navillus’ Ex-Parte applications for extension, nunc pro tunc, of certain mechanic’s liens. PRELIMINARY STATEMENT This appeal stems from the Supreme Court’s denial of Navillus’ ex parte applications to extend two (2) mechanic’s liens and Navillus’ motions to reargue said denials. The mechanic’s liens in issue were filed by Navillus for a total of $1,484,816 owed for labor and materials furnished by Navillus to premises owned by LC. (See R. 32 and 39)1. The labor and materials were supplied as far back as 2007. LC has never denied that the labor and materials were furnished for its benefit in developing the projects; nor has LC denied that the monies are owed Navillus. The mechanic’s liens are a 1 “R. ___” refers to the Record on Appeal. 1 vital protection the law affords to Navillus for recovery of the monies long due and owing it. Navillus had filed the ex parte applications on May 19, 2010 and the mechanic’s liens were scheduled to expire on May 24, 2010. Navillus had previously extended the two (2) mechanic’s liens, as of right, by the filing of an extension pursuant to Lien Law §17. Thereafter, Navillus moved to reargue the denials of its ex parte applications and said motions to reargue were also denied. Navillus appealed the two (2) decisions denying the ex parte applications and the two (2) motions to reargue and the Second Department reversed. The Second Department reversed after hearing oral argument wherein the Court inquired regarding practical aspects of submission of such ex parte applications in the various Supreme Courts within the Second Department. It is respectfully submitted that the Second Department correctly recognized the practical effect of a lower court’s failure to promptly address applications which were timely submitted. The Second Department correctly found that Lien Law §17 did not prohibit the granting of these applications to extend mechanic’s liens nunc pro tunc where the application was timely submitted but not forwarded to a judge for signature until after the expiration date. 2 The heart of LC’s appeal is its contention that unless the Supreme Court signed the order extending the mechanic’s liens within one (1) year of the date of their last renewal, the mechanic’s liens expired and cannot for any reason be resuscitated. The Second Department properly recognized that the logical extension of LC’s argument would mean that the courts have no authority to extend a mechanic’s lien unless the order was granted by the time of the mechanic’s liens expiration date regardless of where the fault lay for such failure. To have this be the law would make the courts powerless to correct their own or a clerk’s error which is the situation herein. While LC places blame on Navillus for not submitting its application sufficiently in advance of the expiration of the mechanic’s lien, neither LC nor the Supreme Court indicated how much in advance would be required for Navillus to have its recourse. It is Navillus’ position that the clerk did not timely forward it to Judge Colabella. According to LC’s interpretation of the law, even if Navillus had submitted the order weeks in advance, but for any reason or circumstance the clerk failed or was unable to assign the papers to a judge, or if the Supreme Court committed reversible error in refusing to grant the application, the lienor would be unable to have the court restore its mechanic’s lien rights. Respectfully, that cannot be the law. 3 In addition, the Second Department correctly relied, at least in part, on CPLR §2004. Finally, the Second Department correctly realized that there was an illogical dichotomy with respect to orders extending mechanic’s liens. An order extending a mechanic’s lien that was signed before the expiration of the mechanic’s lien but that the Clerk did not docket until after what would have been the expiration date was already permissible. (See R. at 148-150)2 As a practical matter, the Second Department recognized the county to county differences in procedure regarding the time between a party filing an ex parte application to extend a mechanic’s liens and the forwarding of said application to a judge for signature. The Second Department also recognized that there was no substantive difference between the permissible gap between an ex parte order that was timely signed but not recorded until after the expiration date of the mechanic’s lien and the time gap presented here. Both scenarios have the same effect with respect to title issues and therefore, should not be treated any differently by the courts. Accordingly, it is respectfully submitted that this Court affirm the Second Department’s Decision and Order as the Second Department correctly recognized that the timely filing of Navillus’ ex parte applications 4 to extend the two (2) mechanic’s lien with the Supreme Court was sufficient. That the applications were not brought to the Judge’s Part for signature prior to the expiration of the mechanic’s liens did not preclude extension of the mechanic’s liens, nunc pro tunc. QUESTIONS PRESENTED 1. Whether the timely filing of an ex parte application to extend a mechanic’s liens prior to expiration of said mechanic’s lien is sufficient to preserve the lienor’s mechanic’s lien rights pursuant to Lien Law §17? ANSWER: Yes. The timely filing of an ex parte application to extend a mechanic’s lien prior to the expiration of said mechanic’s lien is sufficient to preserve the lienor’s mechanic’s lien rights pursuant to Lien Law §17. 2. May a mechanic’s lien be extended nunc pro tunc when the application is timely filed but the Court fails to consider the application prior to the expiration of the mechanic’s lien? ANSWER: Yes. If a lienor timely files an ex parte application to extend a mechanic’s lien prior to the expiration of said mechanic’s lien, then the Court may extend that mechanic’s lien nunc pro tunc. It 5 is only the failure to move within the one (1) year period to extend the mechanic’s lien which is fatal to the mechanic’s lien. 3. Was the Second Department correct in reversing the Orders of the Supreme Court and allowing the extension of the mechanic’s liens nunc pro tunc pursuant to Lien Law §17 because the applications for same had been timely filed before the expiration of the mechanic’s liens. ANSWER: Yes. The Second Department was correct in reversing the Orders of the Supreme Court and allowing the mechanic’s liens to be extended nunc pro tunc because the applications for extension had been timely filed before the expiration of the mechanic’s liens. 4. May CPLR §2004 to Lien Law §17 be used to extend a notice under mechanic’s lien law nunc pro tunc when the application is timely filed but the Court fails to consider the application prior to the expiration of the mechanic’s lien? ANSWER: Yes. CPLR §2004 permits the court to “extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application is made before or after the expiration of the time fixed.” 6 STATEMENT OF FACTS, PROCEDURAL HISTORY AND BACKGROUND FACTS Navillus filed two (2) Notices Under Mechanic’s Lien (“Liens”) in the offices of the Clerk of the County of Westchester on May 30, 2008. (R. 32, 39). The Liens were extended as of right by the filing of Extensions of Mechanic’s Liens in the Offices of the Clerk of the County of Westchester on May 22, 2009. (R. 33, 40). On Wednesday, May 19, 2010, Navillus filed two (2) ex parte applications to extend the Liens pursuant to Lien Law Section 17 with the Clerk of the County of Westchester. (R. 29, 36). Since the Liens’ expiration dates were on a weekend, the next working court date was Monday, May 24, 2010. The Clerk of the Court was advised of the impending expiration dates at the time of filing. At the time of said filings, Westchester County was not permitting such Lien extension applications to be hand delivered to the assigned justice as was the practice some two (2) years prior thereto. (R. 53- 54, 125-126). Since the underlying applications were ex parte, with no notice required to any other party, no Orders to Show Cause were required. (R. 43). The Clerk of the Court assigned the Lien extension applications to Judge Colabella. (R. 7, 15). The Court did not notice the expiration date until on or about May 25 or May 26, 2010. (R. 7, 15). It appears that the applications were not delivered by the Clerk to Chambers prior to the 7 expiration dates of the Liens. (R. 7, 15). The Court requested relevant case law to allow the court to extend the Liens. On August 9, 2010, Judge Colabella issued two (2) decisions denying the applications to extend the Liens. (R. 6, 14). Applicable appeals were filed. On November 26, 2010, Navillus moved to renew and reargue Judge Colabella’s prior decisions and orders. On February 14, 2011, Judge Colabella issued two (2) Decisions/Orders granting the motion to renew and reargue and upon same, affirmed his prior decisions. (R. 21, 26). By Order dated March 4, 2011, the Second Department consolidated the appeals. By Decision and Order dated September 12, 2012, the Second Judicial Department reversed the Supreme Court and, inter alia, granted Navillus’ Petitions pursuant to Lien Law §17 further extending two (2) mechanic’s liens nunc pro tunc. (R. 14). The Second Department clearly and succinctly stated, [c]ontrary to the Supreme Court’s conclusion, it did possess the power to grant the petitions extending the terms of the liens nunc pro tunc. Nothing in the text of Lien Law §17 prohibits the granting of an application for an extension of the terms of a lien where the application is timely filed but not presented to a judge or justice until after the expiration date (see Makovic v. Aigbogun, 41 AD 3d 342). Although, in denying the petitions and adhering to its prior determinations, the Supreme Court relied on Matter of Binghamton Masonic Temple v. Armor El. Co. (186 AD2d 338) and Contelmo’s Sand & Gravel v. J&J Milano (96 AD2d 1090), those cases are distinguishable, as they did not squarely address the issue presented in this case. 8 Since the granting of the petitions nunc pro tunc is not “otherwise expressly prescribed by law, the court may extend the time fixed by [Lien Law §17] upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed” (CPLR 2004). In the exercise of our discretion, we grant the petitions nunc pro tunc to May 19, 2010, the date the petitions were filed. Since the requests for relief set forth in the petitions may be made ex parte, and there may be a gap between the signing of the extension order and its filing, during which the one-year term of the lien may expire without affecting the validity of the lien, LC Main would not be prejudiced by the granting of the extensions nunc pro tunc (see H.M. Hughes Co. v. Carmania Corp., 187 AD2d 287; Matter of Binghamton Masonic Temple v. Armor El. Co., 186 AD2d at 338; Madison Lexington Venture v. Crimmins Contr. Co., 159 AD2d 256, 258; Bianchi Constr. Corp. v. D’Egidio, 165 Misc.2d 973, 975). 9 JURISDICTIONAL STATEMENT By Decision and Order dated September 12, 2012, the Second Department dismissed the appeals from the orders dated August 9, 2010 as superseded by the orders dated February 14, 2011 which were made upon renewal and reargument. (R. 148) Navillus served LC Main with notice of entry of the September 12, 2012 Decision and Order on September 21, 2012. (Exhibit A to LC Main’s motion for leave to appeal to the Court of Appeals). LC Main moved for leave to appeal to the Court of Appeals by motion dated October 22, 2012. This Court granted LC Main’s motion for leave to appeal by Decision and Order dated December 18, 2012. (R. 146). LEGAL ARGUMENT I. THE FILING OF AN EX PARTE APPLICATION TO EXTEND A MECHANIC’S LIEN PRIOR TO THE EXPIRATION OF SAID MECHANIC’S LIEN IS SUFFICIENT TO PRESERVE THE LIENOR’S MECHANIC’S LIEN RIGHTS PURSUANT TO LIEN LAW §17 The filing of an ex parte application to extend a mechanic’s lien prior to the expiration of said mechanic’s lien is sufficient to preserve the lienor’s mechanic’s lien rights pursuant to Lien Law §17. The Lien Law is to be liberally construed to fulfill its intended purposes. So long as the Lienor applies for the Lien extensions before the 10 one (1) year period has expired the Lien remains valid. Zoerb and Company, Inc. v. Young Fire Equipment Co., 134 App.Div.2nd 826; 521 N.Y.S.2nd 585 (4th Dept., 1987). The failure to move within the one (1) year period to extend the Lien results in its termination. Aztec Window & Door Mfg. Inc. v. 71 Village Road, LLC, 60 App.Div.3rd 795; 875 N.Y.S.2nd 628 (2nd Dept., 2009). As long as the court ordered extension was granted within the statutory period, the mere fact that it was not actually filed with the County Clerk within that period does not extinguish the Lien. Binghamton Masonic Temple Inc. v. Armon Elevator Co., Inc., 186 App.Div.2nd 338; 588 N.Y.S.2nd 207 (3rd Dept., 1992). When the Lienor files the Lien with the proper recording officer but the recording officer fails to record same, the Lienor does not lose his lien rights due to the mistake of the recording officer. Thermal Design, Inc. v. Gorman, 162 Misc.2nd 519; 617 B.Y.S.2nd 1016 (Sup. Ct., Rockland Cty., 1994). In Re Manton, 152 App.Div. 888; 136 N.Y.S. 597 (2nd Dept., 1912). There is no issue that the general rule in New York is that an action is timely commenced by filing the requisite paperwork with the clerk of the court prior to the expiration of a statue of limitations. An Article 78 proceeding was deemed properly filed when the required paperwork and fees were presented to the Clerk. The failure to obtain the judge’s signature 11 was not a jurisdictional defect. Krenzer v. Town of Caledonia, 167 Misc.2nd 798; 634 N.Y.S.2nd 927 (Sup. Ct., Monroe, Cty., 1995). Similarly, an Article 78 Proceeding was deemed properly filed even though copies were filed before the filing deadline and the originals followed after the filing deadline. Lynch v. Betts, 12 Misc.3rd 295; 812 N.Y.S.2nd 312 (Sup. Ct., Yates Cty., 2006). In Peace v. Zhang, 15 App.Div.3rd 956; 789 N.Y.S.2nd 362 (4th Dept., 2005), a summons and complaint were deemed properly filed so long as they were physically delivered to the Clerk’s office prior to expiration of the statute of limitations. There is no substantive difference between the permissible gap when an ex parte order was timely signed but not filed until after the expiration date of the mechanic’s lien and the gap herein. Both scenarios have the same effect with respect to cloud of title issues and therefore, should not be treated any differently by the courts. Therefore, the filing of an ex parte application to extend a mechanic’s lien prior to the expiration of said mechanic’s lien is sufficient to preserve the lienor’s mechanic’s lien rights pursuant to Lien Law §17. 12 II. A MECHANIC’S LIEN MAY BE EXTENDED NUNC PRO TUNC WHEN THE APPLICATION THEREFOR IS TIMELY FILED A mechanic’s lien may be extended nunc pro tunc when the application therefor is timely filed but the Court fails to consider the application prior to the expiration of the mechanic’s lien. In Makovic v. Aigbogun, 41 App.Div.3rd 342; 837 N.Y.S.2nd 570 (1st Dept., 2007), the Appellate Division, First Department, ruled that a Notice of Pendency may be extended nunc pro tunc. In Makovic, the Court extended the Notice a month after its expiration date. The Court specifically noted that the Plaintiff had filed the motion to extend the Notice prior to the expiration date. A mechanic’s lien is akin to a notice of pendency since both affect real property rights. The statute provides for an expiration date for both classes of liens. Makovic stands for the proposition that so long as the application is timely filed it may be signed nunc pro tunc after the expiration date. In the within matter, there is no issue that Judge Colabella received the application to extend the Mechanic’s Lien one (1) or two (2) days after it expired due to an error in the Clerk’s office. The Second Department correctly decided that Judge Colabella “had the power to grant the petitioners extending the term of the liens nunc pro tunc.” The Second Department went on to state that “[n]othing in the text of 13 Lien Law §17 prohibits the granting of an application for an extension of the term of a lien where the application is timely filed but not presented to a judge or justice until after the expiration date” and cited Makovic. Makovic specifically noted that the movant moved for the extension of the notice of pendency prior to its expiration date but that the court failed to render its decision until after the expiration date. This is the exact set of circumstances herein. Further, Judge Colabella had previously extended a Notice Under Mechanic’s Lien Law on the exact same application as within. In Bruzzese Home Imp., LLC, (R.55, 56), Judge Colabella extended a Mechanic’s Lien some three (3) weeks after it expired. Judge Colabella ignored his own precedent herein. In the within matter, Navillus undertook the statutorily required action of filing its ex parte applications to extend the Liens on May 19, 2010 which was before the expiration dates of May 24, 2010. As per the cases cited supra, Navillus took all required actions to extend the Liens. LC Main attempts to place fault with Navillus for its failure to move by order to show cause as suggested by the Supreme Court. However, applications to extend mechanic’s liens are ex-parte and there is no requirement that it be done by order to show cause. LC has not pointed to 14 any requirement that an application to extend a mechanic’s lien be brought by order to show cause. Neither the Supreme Court nor LC have explained how seeking an order to show cause would have solved the problem created when the Clerk failed to forward the applications to a justice on Wednesday, May 19; Thursday, May 20; Friday, May 21; or even arguably Monday, May 24 (assuming the expiration date was not operative on Saturday or Sunday. An order to show cause is typically utilized to seek temporary relief and address and shorten the method of service on opposing parties, who are demanded to show cause why certain relief should not be granted. Applications to extend mechanic’s liens are ex-parte and therefore, do not need to be served on the owner. Moreover, there is no reason to suppose that an order to show cause would have been timely signed by the Court. In fact, moving by order to show cause may have only delayed the process. The Second Department recognized that Navillus should not be deprived of its Lien rights because the Clerk of the Supreme Court, Westchester County failed to expeditiously transmit the applications to the assigned Judge. Under Lien Law §17 (McKinneys, 2010) the application for a court order is ex parte. No notice to any party is required and the statute does not provide for an order to show cause for an emergency extension of the 15 mechanic’s lien while the Court considers the underlying application. At the time of the submission of the ex parte applications herein, Westchester County did not permit applications to be brought to the Judge which was their practice until some two (2) years prior thereto. Since Navillus took all required actions to extend the mechanic’s liens, Navillus should not be prejudiced for the delay occasioned by the Clerk’s failure. The within situation has arisen many times with various Judges of the Supreme Court. Judges of the Supreme Court in Kings, Nassau and Westchester counties have routinely extended Liens nunc pro tunc when they were timely filed but not delivered to the assigned Justice by the Clerk until after the expiration date. The judicial consensus is that the failure of the Clerk to act expeditiously should not accrue to the prejudice of the Lienor. The within Applications to extend the Liens were filed with the Clerk of the County of Westchester on May 19, 2010. The Liens expired on May 24, 2010. Accordingly, the Court had four business days to consider and sign the ex parte applications. Matter of the Application of Bruzzese Home Imp., LLC, Supreme Court, Westchester County, Judge Colabella, 13644/06 (R. 55, 56) presented the same facts as in the matter at bar and was also assigned to Judge 16 Colabella. In Bruzzese, the ex parte Lien extension application was filed with Supreme Court, Westchester County on July 25, 2006 and the Lien expired on August 1, 2006. Bruzzese was assigned to Judge Colabella who extended the Lien nunc pro tunc on August 21, 2006, three (3) weeks after it expired. For some unknown reason, Judge Colabella ignored his own precedent. Fourteen (14) judges in six (6) jurisdictions have extended Mechanics Liens after their expiration date nunc pro tunc so long as the underlying applications were timely filed with the Clerk of the Court. In Grafton Construction Co., Inc., Supreme Court, Bronx County, 260048/09, (R. 66, 67), Judge Friedlander extended a Mechanic’s Lien nunc pro tunc on February 24, 2009 even through the Lien had expired on February 21, 2009. Judge Friedlander specifically noted that the Lienor had timely applied for the extension of the Lien and cited the Makovic, supra, matter as precedent. Judge Friedlander noted that the Lienor made a timely application to extend the Lien. In CA Construction, Inc., Supreme Court, Westchester County, 27782/09 (R. 68-70), Judge Smith likewise extended a Mechanic’s Lien nunc pro tunc. Judge Smith specifically wrote a Decision appended to the Order noting that the application was not brought to chambers until after the 17 Lien had expired. Judge Smith cited administrative error with the Courthouse for the delay. This is the exact situation as in the matter at bar and involves the same jurisdiction, i.e., Westchester County. In MDM Construction, Inc., Supreme Court, Westchester County, 25883/08 (R. 71-72), Judge Liebowitz extended a Mechanic’s Lien nine (9) days after it expired when the papers were timely filed with the Westchester County Clerk. Judge Liebowitz likewise extended a Mechanic’s Lien in Zanders Co., Supreme Court, Westchester County, 19731/08. In the prior Westchester matters the applications were likewise filed several days prior to the expiration dates. The Clerk apparently delayed sending the applications to Chambers. Counsel can only deliver the applications and cannot request that the process be expedited or that the movant be allowed to personally bring the filed applications to the assigned Judge. As the Second Department recognized, the practice of Westchester County in handling these matters should not cause prejudice to Navillus. The following Judges have likewise extended Liens nunc pro tunc in various jurisdictions. Judge Schoenfeld in New York County (R. 75-76); Judge Berliner in Rockland County (R.77-78); Judge Rivera in Kings County (R. 79-80); Judge McDonald in Queens County (R. 81-82); Judge Sampson in Queens County on two (2) separate applications (R. 83-84, 89- 18 90); Judge Rosengarten in Queens County (R. 85-86); Judge Woodard in Nassau County (R.91-92); Judge Feinman in Nassau County on two (2) separate applications (R. 93-94, 95-96) and Judges Victor and Massaro in Bronx County (R. 97- 101). The overwhelming judicial opinion based upon the actions of fourteen (14) Justices of the Supreme Court in seven (7) separate jurisdictions is that so long as the ex parte application to continue a Mechanic’s Lien is timely filed it will be granted must be accorded considerable weight by this Court. The decision in Makovic, supra, out of the First Department must also be accorded due consideration. Since the purpose of the Lien Law is to be liberally construed Tri-City Electric Co., Inc. v. People, 96 A.D.2d 146, 468 N.Y.S.2d 283, 286; Alyea v. Citizens’ Savings Bank, 12 App. Div. 574, 42 N.Y.S. 185, affd. 162 N.Y. 597, 57 N.E. 1103, it follows that continuation of a Lien is to permitted so long as the applicant followed the statutory scheme of filing the application with the Clerk of the Court before its expiration date. The Lien Law specifically provides that no prior notice upon the owner or any other party is required. This clearly indicates the intent of the drafters of the Lien Law to allow for an expedited renewal application. This Court cannot permit the peculiar requisites of one county clerk’s office to prejudice the rights of 19 Navillus. Westchester County’s system of not allowing expedited handling of the within applications cannot be allowed to prejudice Navillus herein. Therefore, a mechanic’s lien may be extended nunc pro tunc when the application therefor is timely filed but the Court fails to consider the application prior to the expiration of the mechanic’s lien. III. THE SECOND DEPARTMENT WAS CORRECT IN REVERSING THE SUPREME COURT AND ALLOWING THE MECHANIC’S LIEN EXTENSIONS NUNC PRO TUNC PURSUANT TO LIEN LAW §17 ON THE GROUNDS THAT THE APPLICATIONS HAD BEEN TIMELY FILED The Second Department was correct in reversing the Orders of the Supreme Court and allowing the extension of the mechanic’s liens nunc pro tunc pursuant to Lien Law §17 because the applications for same had been timely filed before the expiration of the mechanic’s liens. With respect to cloud of title issues, there is no substantive difference between the permissible gap when an ex parte order was timely signed but not filed until after the expiration date of the mechanic’s lien and the gap herein. LC Main tries to convince this Court that this situation will create havoc in the real estate and title insurance industries. There is no evidence in the Record to support LC’s speculations, which are illogical. LC’s arguments of prejudice are also unavailing. There has been no showing of 20 prejudice and all claims of prejudice have been unspecific and speculative without support in the Record. Nor is the speculation relevant here. The two (2) Navillus mechanic’s liens and the applications to renew the mechanic’s liens were already of record as were the ensuing motions and appeals which were sufficient to give any title company notice of actual and potential encumbrances. Therefore, the Second Department correctly relied on Lien Law §17 and the existing case law to determine that the Lower Court was incorrect and was correct in reversing the Orders of the Supreme Court and allowing the extension of the mechanic’s liens nunc pro tunc pursuant to Lien Law §17 because the applications for same had been timely filed before the expiration of the mechanic’s liens. IV. CPLR §2004 MAY BE USED TO EXTEND A NOTICE UNDER MECHANIC’S LIEN LAW NUNC PRO TUNC WHEN THE APPLICATION IS TIMELY FILED BUT THE COURT FAILS TO CONSIDER THE APPLICATION PRIOR TO THE EXPIRATION OF THE MECHANIC’S LIEN CPLR §2004 may be used to extend a notice under mechanic’s lien law nunc pro tunc when the application is timely filed but the court fails to consider the application prior to the expiration of the mechanic’s lien. CPLR §2004 permits the court to “extend the time fixed by any 21 statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application is made before or after the expiration of the time fixed”. The Second Department used the discretion afforded by CPLR §2004 and stated, [s]ince the granting of the petitions nunc pro tunc is not ‘otherwise expressly prescribed by law, the court may extend the time fixed by [Lien Law §17] upon such terms as may be just and upon good cause shown whether the application for extension is made before or after the expiration of the time fixed Once again, the case law cited by Main does not support its arguments and there is no dispute between the departments as to the applicability of CPLR §2004. The application of CPLR §2004 is discretionary and each set of facts must be analyzed. In Tewari v. Tsoutsouras, 75 N.Y.2d 1, 549 N.E.2d 1143 (1989), this Court reversed the lower court’s dismissal of a medical malpractice suit based upon a failure to comply with the notice requirements of CPLR 3406(a). Tewari specifically stated that “CPLR 2004 vests the Supreme Court with discretion to extend the time to perform any act[]”. (Emphasis added) Id. at 11. 22 Matter of Carassavas v. New York State Dept. of Social Servs., 90 A.D.2d 630, 456 N.Y.S.2d 217 (3rd Dept. 1982) and Matter of Powers v. Foley, 25 A.D.2d 525, 267 N.Y.S.2d 459 (2nd Dept. 1966) are distinguishable as Navillus timely filed its applications and the Court utilized CPLR §2004 to allow the applications to be granted nunc pro tunc. The Court did not extend a time limit contained in the Lien Law nor did it extend a substantive act provided for in the Lien Law. In H.M. Hughes Co. v. Carmania Corp., 187 A.D.2d 287, 589 N.Y.S.2d 170 (1st Dept. 1992), the First Department found that a resettled order extending a notice of pendency was properly made when the initial order, due to movant’s error, omitted the block and lot from the original order. Interestingly, the Hughes Court placed blame with the County Clerk who failed to promptly reject the initial document. Therefore, the Second Department properly utilized CPLR §2004 to extend the notices under mechanic’s lien law nunc pro tunc as the applications were timely filed but not considered by the court prior to the expiration of the mechanic’s lien. 23 V. THERE IS NO UNCERTAINTY SURROUNDING THE VALIDITY OF NAVILLUS’ MECHANIC’S LIENS There is no uncertainty surrounding the validity of Navillus’ mechanic’s liens. On September 12, 2012, the mechanic’s liens were extended nunc pro tunc to May 19, 2010. The Second Department’s September 12, 2012 Decision and Order clearly granted, the petitions nunc pro tunc to May 19, 2010, the date the petitions were filed. Since the requests for relief set forth in the petitions may be made ex parte, and there may be a gap between the signing of the extension order and its filing, during which the one-year term of the lien may expire without affecting the validity of the lien, LC Main would not be prejudiced by the granting of the extensions nunc pro tunc (see H.M. Hughes Co. v. Carmania Corp., 187 AD2d 287; Matter of Binghamton Masonic Temple v. Armor El. Co., 186 AD2d at 338; Madison Lexington Venture v. Crimmins Contr. Co., 159 AD2d 256, 258; Bianchi Constr. Corp. v. D’Egidio, 165 Misc 2d 973, 975) As such, the practical effect of the Second Department’s Decision and Order are that the mechanic’s liens are extended until September 12, 2013. It merely puts Navillus in the position it would have and should have been in had the Supreme Court timely signed the orders or signed the order nunc pro tunc. To hold otherwise, would pervert the Second Department’s holding. 24 There were no further steps that Navillus could take during the pendency of these appeals to secure its lien rights. Therefore, there is no uncertainty surrounding the validity ofNavillus' mechanic's liens. On September 12, 2012, the mechanic's liens were extended nunc pro tune until September 12, 2013. CONCLUSION For all of the reasons set forth herein including the cases and statutes cited and the Record, Navillus respectfully requests that this Court affirm the Second Department's Decision and Order dated September 12, 2012 and for such other and further relief as to this Court seems just and proper. Dated: April !!:> , 2013 Mineola, New York Rabinowitz & Galina, Esqs. Attorneys for Lienor-Respondent Na Illus Tile Inc. ~ By: Michael M. Gayle A. Rosen 94 Willis A venue Mineola, New York I 1501 ( 516) 73 9-8222 25