Niagara Venture v. Sicoli & Massaro, Inc.

Order insofar as appealed from reversed on the law without costs and petition granted. Memorandum: Petitioner sought summary discharge of mechanic’s liens pursuant to Lien Law § 19. It had owned 20.6 acres of land, and in March 1987 it contracted with respondent Sicoli & Massaro, Inc. for construction of a theme park on part of the land. In September 1987, after the theme park was constructed on the northerly 16.1 acres, that area was conveyed to the city; petitioner retained an unimproved 4.5-acre parcel fronting on Rainbow Boulevard. After the conveyance of the theme park and [993] apparently without realizing that the conveyance had occurred, several respondents filed private liens against the entire 20.6-acre parcel. In May 1988, respondent Sicoli & Massaro filed six pairs of liens for the same work and materials and in the same amounts against the entire 20.6-acre parcel as a private lien, and as a lien for a public improvement. Other respondents thereafter filed public improvement liens for identical work and material and in the same amounts as their private liens. Supreme Court discharged the private liens to the extent that they encumbered land owned by the city but refused to do so as to the remainder of the land owned by petitioner. It also refused to discharge the public improvement liens. In an addendum to its memorandum decision, Supreme Court reasoned that the liens had been filed before transfer of part of the tract to the city and that a lien filed against a unified parcel operates against the entire parcel even if the work was done on only a portion of the parcel. It relied on Jannotta v Noslac Realty Corp. (231 App Div 864) and Woolf v Schaefer (103 App Div 567). The court erred in finding that the lien was filed before the transfer. We agree that a lien filed against a unified parcel operates against the entire parcel even if work was done only on a portion of it, but that is not the case here. Lien Law §4 provides that a private lien extends to the owner’s right, title or interest in the real property and improvements existing at the time of filing the notice of lien. It is undisputed that no improvements were actually made on the parcel retained by Niagara Venture. Respondent has cited no authority for its contention that the 20.6-acre parcel remained unified after title was separated between two owners. Although this appeal is from only that part of the court’s order refusing to discharge the private liens, we note that several lienors have filed private liens and public improvement liens for identical work and materials against different premises in different ownership. The liens were invalid because they failed to apportion the work and materials among the two separately owned tracts (see, Contelmo’s Sand & Gravel v J & J Milano, 96 AD2d 1090). While we agree with the dissent that private liens can be filed for improvements such as roadways and utility service mains made off the liened premises but benefiting them (see, W.L. Dev. Corp. v Trifort Realty, 44 NY2d 489; Matter of Bradwood Realty v Transit Paving, 43 Misc 2d 374), we distinguish those cases from this one because identical public and private liens have been filed [994] and because it cannot fairly be said that the theme park constitutes an improvement to the vacant parcel in the same way that a roadway improves a subdivision. All concur, except Boomer and Lowery, JJ., who dissent and vote to affirm the order, in the following memorandum.