In the Matter of New Jersey Window Sales, Inc., Petitioner. Precision Specialist Metal & Glass, Inc., Lienor.
Edward A. Stein, New York City, for petitioner.
Weidenbaum & Harari, New York City, for lienor.
Edward H. Lehner, J.
The central issue before me is whether the mechanic's lien filed herein is valid when filed in 2000 by a New Jersey entity which was incorporated in 1984 but dissolved in 1990 by the New Jersey Secretary of State for failure to pay taxes, and which has never qualified to do business in New York although it did a significant volume of business here.
On February 4, 2000 a mechanic's lien in the amount of $258,494 was filed by Precision Specialist Metal & Glass, Inc. (Precision) for labor performed in installing windows at Alfred Lerner Hall on the campus of Columbia University. Pursuant to Lien Law § 17, the lien was extended for another year by notice filed on January 18, 2001. The notice of lien showed the business address of Precision as being in Passaic, New Jersey. The labor was performed by Precision pursuant to a contract with New Jersey Window Sales, Inc. (Sales).
Before me is a motion by Sales to discharge the lien on the grounds that at the time of the lien filing Precision was not in existence because on June 26, 1990 it was dissolved in New Jersey for failure to pay taxes, and because the notice of lien did not comply with Lien Law § 9.
The president of Precision avers that he was unaware of the dissolution until the making of this motion. Precision, which indicated that it has no office in New York, never qualified to do business here although it has performed millions of dollars of construction work in New York since 1988. However, it asserts that it has been paying our State franchise tax and has received authority from the New York State Department of Taxation and Finance to collect sales tax.
On August 28, 2001, Precision obtained a certificate from the Treasurer of the State of New Jersey stating that Precision has paid " in lieu of taxes and penalties, fees for reinstatement" and that it is authorized " to continue its business and resume the exercise of its functions." Precision also obtained a letter from an employee of the New Jersey Department of the Treasury dated August 21, 2001 stating that the application for reinstatement was being forwarded to the " office of the Attorney General and the Secretary of State for final approval," and that " when the formal certificate is approved reinstatement of a repealed charter relates back to the date of proclamation of repeal and validates corporate action in the interim."
However, although this proceeding to discharge the lien was commenced in April, as of the oral argument on September 21
Precision still had not obtained reinstatement of its New Jersey charter, nor obtained authority to do business in New York.A separate action was commenced by Precision in this court in 2000 to recover for the labor performed on a contract basis, which action is pending before Justice York.
The first issue to be resolved is Sales' argument that the notice of lien should be discharged for failure to comply with the requirement of Lien Law § 9 (1) which mandates that the lienor state in the notice of lien " its principal place of business within the state." Here Precision did not list a ...