Consolidating New York Lien Foreclosure Actions

Pursuant to Lien Law § 43, if multiple actions are brought by different lienors in a court of record, the court in which the first action was brought may, upon its own motion or upon application of a party in any of the actions, consolidate all of the actions. The purpose and plain intent of Lien Law § 43 is to have all controversies arising out of claims against the same property be determined and disposed on in a single action. Mellen v. Athens Hotel Co., 149 A.D. 534 (1st Dep’t 1912); See also Gee Dee Painting Co. v. Boston Realty Corp., 217 N.Y.S.2d 407 (N.Y. Sup. Ct. 1961). Under the lien law, consolidation of actions lies within the discretion of the trial court. Henry Quentzel Plumbing Supply Co., Inc. v. 60 Pineapple Residence Corp., 483 N.Y.S.2d 927 (N.Y. Sup. Ct. 1984). In Henry Quentzel Plumbing, the court held that the case could have been dismissed for the failure to join all necessary parties to the action. However, the court, in its discretion, permitted the plaintiff to amend the complaint to add the necessary defendant. The court stated that “[t]he lien law also expresses a strong policy in favor of having all controversies arising out of liens on the same property resolved in the same action. Id.

Where two actions to foreclose mechanic’s liens have been filed against the owner of a certain premises, the two actions may be consolidated where there is no showing of prejudice. Gee Dee Painting Co., 483 N.Y.S.2d 927. Furthermore, where a lien is filed against a number of adjoining buildings all owned by the same person, the adjoining buildings may be treated as a single building and a single proceeding may be instituted to enforce the lien against them all. Moran v. Chase, 52 N.Y. 346 (N.Y. Sup. Ct. 1873).

However, not all related matters may be consolidated pursuant to Lien Law § 43.  A trial court will not abuse its discretion in refusing to consolidate an action to recover monies due on a contract and to enforce a mechanic’s lien with two additional actions. D.M.I. Painting, Inc. v. Eastern Long Island Hospital, 74 A.D.2d 838 (2nd Dep’t 1980) (where the depositing of money into court discharging the lien calls Lien Law § 37 into play which names the parties to be joined under those circumstances). As such, not all actions with similar interest will be consolidated pursuant to Lien Law § 43.

Finally, under the Lien Law, a trust beneficiary is entitled to a verified statement regardless of whether a mechanic’s lien filed by the beneficiary has been bonded. Bette & Cring, LLC v. Brandle Meadows, LLC, 81 A.D.3d 1152 (3rd Dep’t 2011).

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