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In re T.F. Demilo Corp.

187 A.D.2d 404 Court N.Y. App. Div. Decision date 1992-11-24 English

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p. 404
In the Matter of T.F. Demilo Corporation, Respondent. Black Iron-Rebar and Lathing, Inc., Appellant.

Order, Supreme Court, New York County (Burton Sherman, J.), entered on or about June 9, 1992, which, inter alia, granted

p. 405
the petition by contractor-respondent T.F. Demilo Corporation pursuant to Lien Law § 21 (7) to vacate the mechanic’s lien for a public improvement filed by Black Iron-Rebar and which released the undertaking filed by Demilo in substitution for the mechanic’s lien, unanimously affirmed, without costs.

The IAS Court properly determined that construction of a commercial office building on publicly owned land leased to a private developer did not meet the requirements for the imposition of a public improvement lien since the commercial improvement was constructed by a private entity, rather than a State or public agency, on publicly owned real property (Lien Law §§ 5, 12, 21 [7]; Matter of Paerdegat Boat & Racquet Club v Zarrelli, 83 AD2d 444 , revd on other grounds 57 NY2d 966 ; Plattsburgh Quarries v Markoff, 164 AD2d 30 , lv denied 77 NY2d 809 ).

Black Iron-Rebar’s alternate contention that the public improvement lien was valid because some public funds were advanced to Demilo by City agencies is devoid of merit since a loan from a public agency for a private improvement does not change the nature of the improvement from private to public. Concur—Milonas, J. P., Ellerin, Ross and Asch, JJ.

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