Practice point: Lien Law § 11 provides that within 5 days before or 30 days after
filing the notice of lien, a lienor "shall" serve a copy of such notice
upon the owner, as relevant here, at the owner's "last known place of
residence." Here, the plaintiff's affidavit of service of the
mechanic's lien demonstrates that the plaintiff failed to serve the
notice in compliance with Lien Law § 11, as the
notice was not sent to the defendants' last known place of residence. As
strict compliance with the statutory requirements is mandated, the Appellate Division determined that the Supreme Court should have granted that branch of the
defendants' motion which was pursuant to Lien Law § 11 to dismiss the
sixth cause of action, which was to foreclose a mechanic's lien.
Student note: Where, as here, there is a dispute as to whether there is a contract, the
plaintiff may allege causes of action to recover for unjust enrichment
and in quantum meruit as alternatives to a cause of action alleging
breach of contract
, pursuant to CPLR 3014.
Case:
Thompson Bros. Pile Corp. v Rosenblum, NY Slip Op 06577 (2d Dept. 2014)
Here is the decision.
Tomrorrow's issue: An allegedly loose handrail, and defendant's summary judgment motion is denied.
