Ulster Electric Supply Co. v. Maryland Casualty Co. ( 1970 )

Sweeney, J.

This is an appeal from an order of the Supreme Court at Special Term, entered November 24, 1969 in Ulster County, which denied a motion to dismiss the complaint.

Defendant Renel Construction Inc. was the general contractor for a science building being constructed, at the State University College at New Paltz. Hallmark Electrical Construction Corp. was a subcontractor. Plaintiff supplied materials to Hallmark. Defendant Maryland Casualty Co. was the surety on the payment bond. The bond specifically provided that it was enforceable in accordance with the terms of the provisions of section 137 of the State Finance Law.

On November 16, 1967 plaintiff sent a letter by ordinary mail to Renel stating that Hallmark had not paid them an indebtedness in the amount of $5,821.08 and that “ we are therefore proceeding with a lien against said job.” The letter was received by Renel but, concededly, was not sent by registered mail as prescribed by the statute. On February 23, 1968 Renel was served by plaintiff with a notice of lien which stated the last item of material was furnished on October 16, 1967, Plaintiff subsequently brought the present action to recover on the bond pursuant to section 137 of the State Finance Law.

Defendants moved to dismiss the complaint and Special Term denied the motion, concluding that sufficient written notice was given by the letter of November 16, 1967, and that a reasonable construction of that letter is to the effect that it apprised Renel that “ plaintiff was looking for payment from it ”.

Special Term relied on the reasoning of Federal case law which has held that ordinary mail under a similar Federal statute is sufficient (Fleisher Co. v. United States, 311 U. S. 15). The statute in question creates a cause of action for a material-man where one did not otherwise exist. In creating this cause of action, the Legislature prescribed certain conditions precedent, one of which is that the notice be delivered personally or by mailing the same by registered mail. The Legislature had the power to prescribe this manner of mailing. (Cf. MacMullen v. City of Middletown, 187 N. Y. 37; Matter of Brown v. Board of Trustees of Town of Hamptonburg, School Dist. No. 4, 303 N. Y. 484, 489.) It is not for the courts to say it is unwise or too harsh to compel service by registered mail.

We do not have the authority to substitute our thinking and prescribe another means of service. (See Lawrence Constr. Corp. v. State of New York, 293 N. Y. 634, 639.) We do, however, have the authority and the duty to interpret the statute to determine the intent of the Legislature where there is a doubt or ambiguity in the statute. Uniquely, the intent is clear and unmistakable in the instant case, as evidenced by its legislative history. A very similar statute had been passed by the Législature, but was vetoed by the Governor because it permitted service by both registered and certified mail. The Governor in his veto memorandum concluded that certified mail did not provide the 'same protection as registered mail. (N. Y. Legis. Doc., 1964, No. 65[B], 1964 Recommendations of Law Rev. Comm.)

By the present statute, subsequently enacted, the Legislature clearly intended service to be by registered mail, and not by ordinary mail. Service of the notice by plaintiff was, therefore, fatally defective. (Cf. Triple Cities Constr. Co. v. Dan-Bar Contr. Co., 285 App. Div. 299, affd. 309 N. Y. 665.) It is no answer that the notice was actually received by Renel. (See Teresta v. City of New York, 277 App. Div. 787, revd. on other grounds 304 N. Y. 440.) The Fleisher case which liberally construed the Miller Act (U. S. Code, tit. 40, §§ 270a-270e), is not binding on this court where we have a clear expression by the Legislature that the notice is to be delivered by registered mail. It is not necessary that we reach the question of sufficiency of the form of the notice.

The order should be reversed, on the law and the facts, and motion to dismiss the complaint granted, without costs.