Mechanic's Lien v. 333 State Corp.

Froessel, J.

This is a motion, pursuant to section 59 of the Lien Law, to cancel a mechanic’s hen upon the ground that no action to enforce the same had been commenced within thirty days from the date of service of a notice to commence an action, namely, May 4,1939. It appears from the uncontradicted affidavit in opposition that negotiations to settle the claim had been in progress for some time, and that on June 3, 1939, the summons and complaint herein and a lis pendens were duly filed in the county clerk’s office. It also appears that on June 14, 1939, the attorney for the lienor received a notice of appearance from the attorney making this application on behalf of both the 333 State Corporation and the Winston Construction Corporation, and on the same day a further conference was held with a view to arbitrating this matter, and as a result it was agreed that the figures of the respective parties would be reviewed by the attorneys and the parties. Under the circumstances the motion must be denied. Section 59 of the Lien Law is not a statute of limitation making it compulsory for the court to discharge the lien. It is a permissive statute which clothes the court with discretionary power to discharge or to deny to do so for good reason shown. (Matter of Cohen, 209 App. Div. 415.)