In Harlem Plumbing Supply Co. v. Handelsman, 40 A.D.2d 768, 768, 337 N.Y.S.2d 329 [1st Dept. 1972], plaintiff filed a mechanic's lien upon property then owned by 48th Street Associates related to materials furnished to a subcontractor in connection with alterations to the premises of a tenant of the property.
"Prior to the commencement of the instant action to foreclose said lien, the tenant made a deposit, pursuant to Lien Law s 20, and obtained a discharge of the lien."
The First Department held:
"The nature and character of the pending action has not changed; the deposit was merely substituted as security for the lien which must still be judicially established. . . . Plaintiff had alternative means to enforce its rights, including an action at law. However, since it elected to bring this equitable action to enforce its lien, as it had a right to do, defendant 48th Street Associates is a necessary party defendant . . . . The fact that this lien was discharged by a deposit (Lien Law s 20) rather than by an undertaking (id. s 19(4)) is of no consequence. Where, as here, the lienor has elected to proceed in equity to enforce its lien, both sections envision the establishment of the validity of such lien before further rights accrue. Under such circumstances, the owner of the property is a necessary party defendant . . . ."