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29-32 LLC v. Neptune Contracting & Environmental

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


April 27, 2010

IN THE MATTER OF 29-32 LLC, APPELLANT,
v.
NEPTUNE CONTRACTING & ENVIRONMENTAL, INC., RESPONDENT.

In a proceeding pursuant to Lien Law § 38, the petitioner appeals from an order of the Supreme Court, Queens County (Satterfield, J.), entered October 8, 2009, which denied its motion to cancel the mechanic's lien.

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.

REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, RUTH C. BALKIN and JOHN M. LEVENTHAL, JJ.

(Index No. 1747/09)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the petitioner's motion to cancel the subject mechanic's lien (see Lien Law § 38; see generally J. Sackaris & Sons, Inc. v Terra Firma Constr. Mgt. & Gen. Contr., LLC, 14 AD3d 538, 541). Here, as noted by the Supreme Court, there is an action currently pending in the Supreme Court, Queens County, entitled Neptune Contracting & Environmental, Inc. v 2932 LLC, under Index No. 27444/08, in which the respondent herein interposed, inter alia, a cause of action to foreclose on the same mechanic's lien involved in the instant proceeding. Under these circumstances, we agree with the Supreme Court that cancellation of the lien is not warranted at this juncture. We note that our determination is without prejudice to either party raising issues regarding the lien in the pending action.

RIVERA, J.P., ANGIOLILLO, BALKIN and LEVENTHAL, JJ., concur.

20100427

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