EMERALD SERVS. CORP. v. EMPIRE CORE GROUP LLC, 2021 NY Slip Op 30394 – NY: Supreme Court February 9, 2021:
“As discussed in Aztec Window & Door Mfg., Inc. v. 71 Vill. Rd., LLC, 60 A.D.3d 795, 796 (2d. Dept 2009) “Pursuant to Lien Law § 17, a mechanic’s lien expires one year after filing unless an extension is filed with the County Clerk or an action is commenced to foreclose the lien within that time and a notice of pendency is filed in connection therewith (see MCK Bldg. Assoc. v. St. Lawrence Univ., 5 A.D.3d 911, 912). In the event neither of these conditions is accomplished within the statutory period, nor is a further extension of the lien obtained by order of the court, the lien automatically expires by operation of law, becoming a nullity and requiring its discharge (see Matter of Cook v. Carmen S. Pariso, Inc., 287 A.D.2d 208, 211).” As plaintiff did not complete either of said requirements during the statutory period, the statutory period, the Liens have expired by operation of law.
Plaintiff cross-moves seeking an Order allowing plaintiff to file extensions of said mechanic’s liens, nunc pro tune. As discussed in Aztec, as plaintiff did not apply for extensions of the Liens within the statutory period, the expiration of same is automatic and this Court lacks the power, in its discretion, to grant plaintiff’s motion. Plaintiff further argues that they are entitled to a toll of the relevant statutory timeframes pursuant to Executive Order 202.8, which provides, “In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.” The Court notes that said Executive Order has been superseded by Executive Order 202.67, which provides “The suspension in Executive Order 202.8, as modified and extended in subsequent Executive Orders, that tolled any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby continued, as modified by prior executive orders, provided however, for any civil case, such suspension is only effective until November 3, 2020, and after such date any such time limit will no longer be tolled.”
As plaintiff filed the instant motion after November 3, 2020, its motion cannot be granted upon said grounds. The Court further notes that plaintiff filed the instant action on June 25, 2020 and failed to file a Notice of Pendency at that time. As such, plaintiff’s arguments are without merit.”