The opinion of the court was delivered by: Thomas F. Whelan, J.
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 printed Official Reports.
It is, ORDERED that this motion (# 001) by the plaintiff for summary judgment dismissing all affirmative defenses asserted in the answer of defendant, Carole Ann Hebb, and in favor of the plaintiff on its complaint and for the appointment of a referee to compute is considered under CPLR 3212 and RPL § 339-aa and is denied.
The plaintiff commenced this action to foreclose a lien for unpaid assessments and other charges which the plaintiff has asserted against the residential real property of defendant, Carole Ann Hebb (hereinafter "Hebb"). According to the complaint served and filed herein, the defendant's residential real property is situated within the residential development managed by the plaintiff under the terms of duly recorded Declaration and By-Laws. The plaintiff alleges that defendant Hebb failed to pay monthly assessments for annual charges due the plaintiff and failed to pay a special assessment totaling $869.00 for restoration of a portion of a common area which Hebb allegedly altered in violation of the plaintiff's By-Laws and/or house rules.
The answer served and filed herein by defendant Hebb contains the following two affirmative defenses: (1) that the Notice of Lien filed by the plaintiff with the Office of the Suffolk County Clerk is invalid due to the plaintiff's failure to verify same as required by RPL § 339-z; and (2) that the asserted lien is invalid in that it includes the $869.00 assessment for restoration, which is not a charge to which the plaintiff's lien may attach.
By the instant motion, the plaintiff seeks an order awarding it summary judgment on its complaint against answering defendant Hebb. To succeed on any such motion, the plaintiff must establish that defendant Hebb's affirmative defenses are without merit and that Hebb failed to pay duly issued assessments due the plaintiff under the terms of its filed Declarations and By-Laws. In this regard, the plaintiff claims that its failure to verify its notice of lien is a harmless defect and that its inclusion of the $869.00 restoration fee as part of the amount due under the lien does not constitute a defense to the plaintiff's claims for foreclosure. Defendant Hebb opposes the plaintiff motion by relying on her two pleaded affirmative defenses, both of which are, according to Hebb, meritorious.
The plaintiff's asserted lien for unpaid common and other charges which the members of the plaintiff's homeowners' association agreed to pay upon their purchase of a home within the boundaries of the plaintiff's residential development is a creature of New York's Condominium Act (hereinafter "Act"). Codified as Article 9-B of the Real Property Law, the Condominium Act provides a lien for unpaid common charges in favor of a Board of Managers of a condominium complex established in accordance with the Act or any incorporated association likewise established (see RPL §§ 339-v; 339-z). Common charges are defined as "each unit's proportionate share of the common expenses" (see RPL §339-e). Common expenses are defined as "expenses of operation of the property" and "all sums designated common expenses by or pursuant to the provisions of this article, the declaration or the by laws" (see RPL §339-e).
Perfection of the lien for unpaid common and other charges contemplated by RPL §339-z is governed by RPL §339-aa. The first sentence thereof provides that the lien is effective from and after the filing in the office of the recording officer in which the Declaration is filed, a verified notice of lien stating, among other things, the name and address of the property, the liber and page of the recorded Declaration, the name of the record owner of the subject unit and the amount and purpose for which due.
Here it is not disputed that the plaintiff's lien was not "verified" as required by RPL §339-aa. Rather, the plaintiff's notice of lien as filed in the Office of the Suffolk County Clerk was acknowledged by an agent of the plaintiff. Defendant Hebb claims that the failure of the plaintiff to have filed a verified notice of lien renders said lien unenforceable by way of foreclosure. In response, the plaintiff claims that the absence of a verification of the notice of lien does not defeat the plaintiff's right to foreclose by reason of the following: 1) the plaintiff's notice of lien is not subject to the verification requirements of RPL §339-aa because the plaintiff is not a condominium but rather a homeowners' association and the lien is for "assessments" not common charges; 2) the Suffolk County Clerk recorded said notice of lien; and 3) many unverified liens have been successfully foreclosed upon in court actions commenced in this and other counties.
Neither side has offered any case authorities in support of their respective positions and the court has found none decided under RPL §339-d et. seq on the verification issue in dispute herein. The court nevertheless rejects as unmeritorious the plaintiff's claim that its filing of an unverified notice of lien gave rise to an enforceable lien which is subject to foreclosure in this action.
The plaintiff's claim that its notice of lien is not subject to the verification requirements of RPL §339-aa because the plaintiff is not a condominium but rather a homeowners' association is in conflict with the provisions of RPL §339-v(1)(a). Pursuant thereto, an incorporated body, such as the plaintiff, may act in the place and stead of the board of managers referred to throughout the Article 9-B of the Real Property Law. In addition, the plaintiff's claim that's its lien in not one arising under RPL §339-z because it is not one for unpaid common charges but rather, is one for assessments is in conflict with the definitions of common charges and common expenses set forth at RPL §339-e(2) and (4). Finally, the plaintiff's claim that neither its lien nor its notice thereof is subject to Real Property Law Article 9-B is belied by the terms of said notice of lien. Review of said notice reveals that it clearly and unequivocally denotes the plaintiff's lien as one arising under Real Property Law §339-z. The plaintiff's attempt to disavow the Condominium Act as controlling not only its lien, but this action, is thus rejected as unmeritorious.
The plaintiff's further claim that the recording of its unverified lien by the Suffolk County Clerk rendered the absence of a verification inconsequential is equally lacking in merit. Its is well established that the recording of a document by a recording officer is a ministerial act which has no effect upon the validity or propriety of the document recorded or of the accuracy of its terms (see Merscorp, Inc. v Romaine, 8 NY3d 90, 828 NYS2d 266 ). The plaintiff's further assertion that the unverified nature of its notice of lien does not render it unenforceable in this action because many unverified liens have been foreclosed upon is clearly an unavailing contention.
Under these circumstances, the court finds that a notice of lien filed pursuant to RPL §339-aa that is not verified as required by said statute does not give rise to an effective lien that is subject to enforcement in a foreclosure action where, as here, an objection to the unverified nature of said notice of lien has been properly asserted. In making such finding, the court is fully cognizant that RPL §339-aa provides that the lien arising under RPL §339-z may be foreclosed in a suit in the like manner as one for foreclosure of a mortgage on real property and that the filing of a verified notice of lien is not required in such actions.
Nevertheless, the filing of a verified notice of lien is required by Lien Law §9(7) and is a condition precedent to the successful prosecution of an action to foreclose a mechanics' lien (see Empire Pile Driving Corp. v Hylan Sanitary Serv., Inc., 332 AD2d 563, 300 NYS2d 434 [2d Dept 1969]; Fries v Bray, 279 AD2d 8, 107 NYS2d 425 [2d Dept 1951]). Since RPL §339-aa contains a like requirement for the filing of a verified notice of lien, it appears that the failure to verify the statements contained in the ...