DocketNumber: Appeal No. 2
Citation Numbers: 199 A.D.2d 1015, 608 N.Y.S.2d 26
Filed Date: 12/29/1993
Status: Precedential
Modified Date: 1/13/2022
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court abused its discretion in severing plaintiff’s mechanic’s lien cause of action from the breach of contract causes of action and in denying defendant’s motion for a change of venue with respect to the related causes of action for breach of contract. Because a mechanic’s lien is an encumbrance on real property (see, Matter of Niagara Venture v Sicoli & Massaro, 77 NY2d 175, 180), an action to foreclose such lien must be brought in the county in which the real property is located (see, CPLR 507; Reichenbach v Corn Exch. Bank Trust Co., 249 App Div 539, 541). Thus, the court properly granted plaintiff’s motion for a change of venue on the cause of action to foreclose the mechanic’s lien on the real property (see, Sambur v Fidelity & Deposit Co., 46 NYS2d 370, 373; see also, Warriner Smith Util. v Intercoast Ellenville Assocs., 85 Misc 2d 495, 496).
Because the same facts and law underlie plaintiff’s breach of
Thus, we modify the order appealed from by vacating that part of the first ordering paragraph severing the fourth cause of action and by granting defendant’s motion for a change of venue to Tompkins County. (Appeal from Order of Supreme Court, Onondaga County, Hayes, J.—Change of Venue.) Present—Denman, P. J., Callahan, Pine, Doerr and Boehm, JJ.