Empress Gardens, Inc. v. Smith-Town Water Co.

On this motion," the petitioner seeks an order canceling a notice of pendency of an action, and an undertaking, filed with the court to discharge a mechanic’s lien. The application was commenced by notice of motion and petition, and served on the respondent’s attorney. The respondent claims that the service is defective, and that the proceeding must be initiated by an order to show cause in which the court directs the manner and time of service.

This court in Matter of Jericho Jewish Center v. Hibner (28 Misc 2d 458) did hold that an application of this type should be instituted by an order to…