#### Bargabos Construction Co., Inc., Plaintiff, v Realty International, Inc., et al., Defendants.

Supreme Court, Onondaga County,

November 10, 1978

APPEARANCES OF COUNSEL

*Smith, Sovik, Kendrick, McAuliffe & Schwarzer, P. C. (James A. OShea*of counsel), for Realty International, Inc., and others, defendants. *Urcioli & Covino (John D. Covino*of counsel), for plaintiff.

OPINION OF THE COURT

Edward F. McLaughlin, J.

Defendants Realty International, Inc., Syracuse One Associates, and United States Fidelity and. Guaranty Company move to dismiss plaintiff’s cause of action to foreclose a mechanic’s lien against the surety bond of the defendant, United States Fidelity and Guaranty Company, on the grounds that the lien has abated because plaintiff failed to obtain and file an order within three years extending the *lis pendens*citing CPLR 6513 and subdivision (2) of section 19 of the Lien Law. Plaintiff has an alternative cause of action in its complaint for work, labor and services which is not embraced in this motion.

Defendants contend that plaintiff’s action to foreclose a mechanic’s lien against an undertaking of United States Fidelity and Guaranty Company posted by stipulation of the par*1029ties and an order of this court on October 2, 1974 has abated because plaintiff failed to obtain and file an order extending the life of its *lis pendens*within three years pursuant to CPLR 6513 and subdivision (2) of section 19 of the Lien Law.

Plaintiff contends that the filing of the undertaking under the stipulation of the parties and order of the court on October *2,*1974 eliminates the necessity to refile the *lis pendens*since the surety’s obligation is substituted for the security of the real estate and the real property is relieved of the lien and the owner may freely alienate it. Plaintiff cites subdivision (4) of section 19 of the Lien Law and CPLR 6515 as authority for cancellation of the *lis pendens*upon filing an undertaking in an amount fixed by the court. It is plaintiffs position that it was not required to renew the *lis pendens*under these circumstances. The pertinent dates insofar as this motion is concerned are as follows: notice of mechanic’s lien filed October 1, 1974; order substituting surety bond filed October 2, 1974; *lis pendens*filed November 21, 1974 (expired Nov. 21, 1977); summons and complaint timely served within one year pursuant to section 19 of the Lien Law.

After considering the moving and answering papers on this motion, and after due deliberation on the law and facts, the court denies the motion of the moving defendants to dismiss the plaintiffs cause of action to foreclose a mechanic’s lien aganst the undertaking of the United States Fidelity and Guaranty Company which is in the sum of $35,000 set by the court on stipulation of the parties which order was filed October 2, 1974 pursuant to CPLR 6515 and subdivision (4) of section 19 of the Lien Law which canceled the *lis pendens*and substituted the surety’s obligation for the security of the real estate. The real property is thus relieved of the encumbrance and the lienor’s remedy is to establish a valid lien and to procure a judgment on the undertaking rather than a judgment of foreclosure against the real estate. (See *White Plains Sash & Door Co. v Doyle,*262 NY 16.)

Moreover, plaintiff states that a check of the abstract of title on subject premises shows a deed dated November 12, 1976 from defendant, Syracuse One Associates, to John R. Minchew, recorded in the Onondaga County Clerk’s office on November 17, 1976. This conveyance was made and the alleged *lis pendens*had no effect due to the filed undertaking.

For the reasons stated above, the motion of the moving defendants to dismiss plaintiffs complaint is denied.