Matter of Mr. White, L.L.C. v. Pink Shirt Constr., Inc.

Matter of Mr. White, L.L.C. v Pink Shirt Constr., Inc. (2019 NY Slip Op 02156) Matter of Mr. White, L.L.C. v Pink Shirt Constr., Inc. 2019 NY Slip Op 02156 Decided on March 21, 2019 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on March 21, 2019 Friedman, J.P., Renwick, Webber, Kahn, Kern, JJ. 8754 155915/17 [*1]In re Mr. White, L.L.C., Petitioner-Respondent, v Pink Shirt Construction, Inc., Respondent-Appellant. White and Williams LLP, New York (Shruti Panchavati and Nicole A. Sullivan of counsel), for appellant. Ronald Francis, New York, for respondent. Order and judgment (one paper), Supreme Court, New York County (Arlene P. Bluth, J.), entered September 29, 2017, which granted petitioner's application to vacate and cancel respondent's mechanic's lien, unanimously affirmed, without costs. It was a provident exercise of the court's discretion to vacate and cancel respondent's mechanic's lien, because respondent failed to commence an action to enforce the lien, as prescribed by Lien Law § 59, the section under which this proceeding was commenced. Validity of the lien, and any dispute as to whether respondent completed the work required by the contract, were to be established at trial of that foreclosure action, which respondent concedes it never commenced (see S A F Sala Corp. v S & H 88th St Assoc. , 138 AD2d 241, 242 [1st Dept 1988]). We have considered respondent's remaining contentions and find them to be unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: MARCH 21, 2019 CLERK