New York Lien Laws
Resources for Mechanic’s Liens and Other Filings in New York
New York Lien Law, Article 2, Chapter 33 – Mechanic’s Liens
Legislation courtesy of the New York State Senate – Legislation – Article 2, Mechanic’s Lien Law.
New York Lien Law Article 2, Chapter 33, Section 3: Mechanic’s Liens on Real Property
- 3. Mechanic’s lien on real property. A contractor, subcontractor,
laborer, materialman, landscape gardener, nurseryman or person or
corporation selling fruit or ornamental trees, roses, shrubbery, vines
and small fruits, who performs labor or furnishes materials for the
improvement of real property with the consent or at the request of the
owner thereof, or of his agent, contractor or subcontractor, and any
trust fund to which benefits and wage supplements are due or payable for
the benefit of such laborers, shall have a lien for the principal and
interest, of the value, or the agreed price, of such labor, including
benefits and wage supplements due or payable for the benefit of any
laborer, or materials upon the real property improved or to be improved
and upon such improvement, from the time of filing a notice of such lien
as prescribed in this chapter. Where the contract for an improvement is
made with a husband or wife and the property belongs to the other or
both, the husband or wife contracting shall also be presumed to be the
agent of the other, unless such other having knowledge of the
improvement shall, within ten days after learning of the contract give
the contractor written notice of his or her refusal to consent to the
improvement. Within the meaning of the provisions of this chapter,
materials actually manufactured for but not delivered to the real
property, shall also be deemed to be materials furnished.
New York Lien Law Article 2, Chapter 33, Section 5: Liens under contracts for Public Improvements
- 5. Liens under contracts for public improvements. A person
performing labor for or furnishing materials to a contractor, his or her
subcontractor or legal representative, for the construction or
demolition of a public improvement pursuant to a contract by such
contractor with the state or a public corporation, and any trust fund to
which benefits and wage supplements are due or payable for the benefit
of such person performing labor, shall have a lien for the principal and
interest of the value or agreed price of such labor, including benefits
and wage supplements due or payable for the benefit of any person
performing labor, or materials upon the moneys of the state or of such
corporation applicable to the construction or demolition of such
improvement, to the extent of the amount due or to become due on such
contract, and under a judgment of the court of claims awarded to the
contractor for damages arising from the breach of such contract by the
state, or awarded for furnishing labor or materials not contemplated by
the provisions of said contract, upon filing a notice of lien as
prescribed in this article, except as hereinafter in this article
provided. Where no public fund has been established for the financing of
a public improvement with estimated cost in excess of two hundred fifty
thousand dollars, the chief financial officer of the public owner shall
require the private entity for whom the public improvement is being made
to post, or cause to be posted, a bond or other form of undertaking
guaranteeing prompt payment of moneys due to the contractor, his or her
subcontractors and to all persons furnishing labor or materials to the
contractor or his or her subcontractors in the prosecution of the work
on the public improvement.
New York Lien Law Article 2, Chapter 33, Section 9: Liens under contracts for Public Improvements
- 9. Contents of notice of lien. The notice of lien shall state:
- The name and residence of the lienor; and if the lienor is a
partnership or a corporation, the business address of such firm, or
corporation, the names of partners and principal place of business, and
if a foreign corporation, its principal place of business within the
state.- 1-a. The name and address of the lienor’s attorney, if any.
- The name of the owner of the real property against whose interest
therein a lien is claimed, and the interest of the owner as far as known
to the lienor. - The name of the person by whom the lienor was employed, or to whom
he furnished or is to furnish materials; or, if the lienor is a
contractor or subcontractor, the person with whom the contract was made. - The labor performed or materials furnished and the agreed price or
value thereof, or materials actually manufactured for but not delivered
to the real property and the agreed price or value thereof. - The amount unpaid to the lienor for such labor or materials.
- The time when the first and last items of work were performed and
materials were furnished. - The property subject to the lien, with a description thereof
sufficient for identification; and if in a city or village, its location
by street and number, if known; whether the property subject to the lien
is real property improved or to be improved with a single family
dwelling or not. A failure to state the name of the true owner or
contractor, or a misdescription of the true owner, shall not affect the
validity of the lien. The notice must be verified by the lienor or his
agent, to the effect that the statements therein contained are true to
his knowledge except as to the matters therein stated to be alleged on
information and belief, and that as to those matters he believes it to
be true.
New York Lien Law Article 2, Chapter 33, Section 10: Filing of Notice of Lien
- 10. Filing of notice of lien. 1. Notice of lien may be filed at any
time during the progress of the work and the furnishing of the
materials, or, within eight months after the completion of the contract,
or the final performance of the work, or the final furnishing of the
materials, dating from the last item of work performed or materials
furnished; provided, however, that where the improvement is related to
real property improved or to be improved with a single family dwelling,
the notice of lien may be filed at any time during the progress of the
work and the furnishing of the materials, or, within four months after
the completion of the contract, or the final performance of the work, or
the final furnishing of the materials, dating from the last item of work
performed or materials furnished; and provided further where the notice
of lien is for retainage, the notice of lien may be filed within ninety
days after the date the retainage was due to be released; except that in
the case of a lien by a real estate broker, the notice of lien may be
filed only after the performance of the brokerage services and execution
of lease by both lessor and lessee and only if a copy of the alleged
written agreement of employment or compensation is annexed to the notice
of lien, provided that where the payment pursuant to the written
agreement of employment or compensation is to be made in installments,
then a notice of lien may be filed within eight months after the final
payment is due, but in no event later than a date five years after the
first payment was made. For purposes of this section, the term “single
family dwelling” shall not include a dwelling unit which is a part of a
subdivision that has been filed with a municipality in which the
subdivision is located when at the time the lien is filed, such property
in the subdivision is owned by the developer for purposes other than his
personal residence. For purposes of this section, “developer” shall mean
and include any private individual, partnership, trust or corporation
which improves two or more parcels of real property with single family
dwellings pursuant to a common scheme or plan. The notice of lien must
be filed in the clerk’s office of the county where the property is
situated. If such property is situated in two or more counties, the
notice of lien shall be filed in the office of the clerk of each of such
counties. The county clerk of each county shall provide and keep a book
to be called the “lien docket,” which shall be suitably ruled in columns
headed “owners,” “lienors,” “lienor’s attorney,” “property,” “amount,”
“time of filing,” “proceedings had,” in each of which he shall enter the
particulars of the notice, properly belonging therein. The date, hour
and minute of the filing of each notice of lien shall be entered in the
proper column. Except where the county clerk maintains a block index,
the names of the owners shall be arranged in such book in alphabetical
order. The validity of the lien and the right to file a notice thereof
shall not be affected by the death of the owner before notice of the
lien is filed.
- Where the county clerk indexes liens in a block index, every notice
of lien presented to the clerk of a county of filing, in order to
entitle the same to be filed, shall contain in the body thereof, or
shall have endorsed thereon, a designation of the number of every block,
on the land map of the county, which is affected by the notice of lien.
The county clerk shall cause such notice of lien to be entered in the
block index suitably ruled to contain the columns listed in the
preceding paragraph, under the block number of every block so
designated. In cases where a notice of lien shall have been filed
without such designation or with an erroneous designation, the county
clerk, on presentation of proper proof thereof, shall enter such
instrument in the proper index, under the proper block number of every
block in which the land affected is situated, and shall, at the same
time, make a note of such entry and of the date thereof in every place
in which such instrument may have been erroneously indexed, opposite the
entry thereof, and also upon the instrument itself, if the same be in
his possession or produced to him for the purpose, and the filing of
such instrument shall be constructive notice as to property in the block
not duly designated at the time of such filing only from the time when
the same shall be properly indexed.
New York Lien Law Article 2, Chapter 33, Section 11: Service of copy of Notice of Lien
- 11. Service of copy of notice of lien. Within five days before or
thirty days after filing the notice of lien, the lienor shall serve a
copy of such notice upon the owner, if a natural person, (a) by
delivering the same to him personally, or if the owner cannot be found,
to his agent or attorney, or (b) by leaving it at his last known place
of residence in the city or town in which the real property or some part
thereof is situated, with a person of suitable age and discretion, or
(c) by registered or certified mail addressed to his last known place of
residence, or (d) if such owner has no such residence in such city or
town, or cannot be found, and he has no agent or attorney, by affixing a
copy thereof conspicuously on such property, between the hours of nine
o’clock in the forenoon and four o’clock in the afternoon; if the owner
be a corporation, said service shall be made (i) by delivering such copy
to and leaving the same with the president, vice-president, secretary or
clerk to the corporation, the cashier, treasurer or a director or
managing agent thereof, personally, within the state, or (ii) if such
officer cannot be found within the state by affixing a copy thereof
conspicuously on such property between the hours of nine o’clock in the
forenoon and four o’clock in the afternoon, or (iii) by registered or
certified mail addressed to its last known place of business. Failure to
file proof of such a service with the county clerk within thirty-five
days after the notice of lien is filed shall terminate the notice as a
lien. Until service of the notice has been made, as above provided, an
owner, without knowledge of the lien, shall be protected in any payment
made in good faith to any contractor or other person claiming a lien.
New York Lien Law Article 2, Chapter 33, Section 13: Priority of Liens
- Priority of liens. (1) A lien for materials furnished or labor
performed in the improvement of real property shall have priority over a
conveyance, mortgage, judgment or other claim against such property not
recorded, docketed or filed at the time of the filing of the notice of
such lien, except as hereinafter in this chapter provided; over advances
made upon any mortgage or other encumbrance thereon after such filing,
except as hereinafter in this article provided; and over the claim of a
creditor who has not furnished materials or performed labor upon such
property, if such property has been assigned by the owner by a general
assignment for the benefit of creditors, within thirty days before the
filing of either of such notices; and also over an attachment hereafter
issued or a money judgment hereafter recovered upon a claim, which, in
whole or in part, was not for materials furnished, labor performed or
moneys advanced for the improvement of such real property; and over any
claim or lien acquired in any proceedings upon such judgment. Such liens
shall also have priority over advances made upon a contract by an owner
for an improvement of real property which contains an option to the
contractor, his successor or assigns to purchase the property, if such
advances were made after the time when the labor began or the first item
of material was furnished, as stated in the notice of lien. If several
buildings are demolished, erected, altered or repaired, or several
pieces or parcels of real property are improved, under one contract, and
there are conflicting liens thereon, each lienor shall have priority
upon the particular part of the real property or upon the particular
building or premises where his labor is performed or his materials are
used. Persons shall have no priority on account of the time of filing
their respective notices of liens, but all liens shall be on a parity
except as hereinafter in section fifty-six of this chapter provided; and
except that in all cases laborers for daily or weekly wages shall have
preference over all other claimants under this article.
(1-a) Parties having assignments of moneys due or to become due under
a contract for the improvement of real property, unless such assignments
be set aside as diversions of trust assets as provided in article
three-a of this chapter, shall have priority as follows:
An assignee of moneys or any part thereof, due or to become due under
a contract for the improvement of real property, whose assignment is
duly filed prior to the filing of a notice of lien or assignment of
every other party to the action, shall have priority over those parties
to the extent of moneys advanced upon such assignment before the filing
of the notice of lien or assignment next subsequent to his assignment,
but as to moneys advanced subsequent to a notice of lien or assignment
filed and unsatisfied or not discharged such assignee for the purpose of
determining his proportionate share of moneys available for distribution
as provided in subdivision one of this section shall be treated as a
lienor having a lien to the extent of moneys so advanced.
An assignee of moneys or any part thereof, due or to become due under
a contract for an improvement of real property whose assignment is duly
filed subsequent to the filing of the notice of lien or assignment of
any other party shall for the purpose of determining his proportionate
share of moneys available for distribution, as provided in subdivision
one of this section be treated as a lienor having a lien to the extent
of moneys actually advanced upon such assignment prior to the filing
thereof.
(2) When a building loan mortgage is delivered and recorded a lien
shall have priority over advances made on the building loan mortgage
after the filing of the notice of lien; but such building loan mortgage,
whenever recorded, to the extent of advances made before the filing of
such notice of lien, shall have priority over the lien, provided it or
the building loan contract contains the covenant required by subdivision
three hereof, and provided the building loan contract is filed as
required by section twenty-two of this chapter. Every mortgage recorded
subsequent to the commencement of the improvement and before the
expiration of the period specified in section ten of this chapter for
filing of notice of lien after the completion of the improvement shall,
to the extent of advances made before the filing of a notice of lien,
have priority over liens thereafter filed if it contains the covenant
required by subdivision three hereof. The lien of a vendee under an
executory contract for the sale of land and the improvement thereof by
the construction of a building thereon shall, to the extent of amounts
paid thereunder to the vendor before the filing of a notice of lien,
have priority over liens filed after the contract or memorandum thereof
is recorded as provided in section two hundred ninety-four of the real
property law if the recorded contract or memorandum specifies the total
amount of payments made by the vendee or required by the contract to be
made by the vendee before conveyance of title.
(3) Every such building loan mortgage and every mortgage recorded
subsequent to the commencement of the improvement and before the
expiration of the period specified in section ten of this chapter for
filing of notice of lien after the completion of the improvement shall
contain a covenant by the mortgagor that he will receive the advances
secured thereby and will hold the right to receive such advances as a
trust fund to be applied first for the purpose of paying the cost of
improvement, and that he will apply the same first to the payment of the
cost of improvement before using any part of the total of the same for
any other purpose, provided, however, that if the party executing the
building loan contract is not the owner of the fee but is the party to
whom such advances are to be made, a building loan contract executed and
filed pursuant to section twenty-two of this chapter shall contain the
said covenant by such party executing such building loan contract, in
place of the covenant by the mortgagor in the building loan mortgage as
hereinbefore provided. Nothing in this subdivision shall be considered
as imposing upon the lender any obligation to see to the proper
application of such advances by the owner; and nothing in this section,
nor in that portion of section two of this chapter, defining “cost of
improvement” shall be deemed to impair or subordinate the lien of any
mortgage containing the covenant required by this subdivision. To the
extent that the trust res consists of the right to receive advances as
distinct from advances actually received, breach of the trust shall give
rise to a civil action only. The covenant provided for herein shall be
deemed to have been made and to be in full force and effect if, in lieu
of the foregoing provisions, a statement in substantially the following
form is contained in the mortgage or contract, “subject to the trust
fund provisions of section thirteen of the lien law.”
(4) Nothing in subdivision two or three of this section shall apply to
any mortgage given by a purchaser for value from an owner making the
improvement and recorded prior to the filing of a lien pursuant to this
chapter, provided the instrument of conveyance contains the provisions
mentioned in subdivision five herein.
(5) No instrument of conveyance recorded subsequent to the
commencement of the improvement, and before the expiration of the period
specified in section ten of this chapter for filing of notice of lien
after the completion of the improvement, shall be valid as against liens
filed within a corresponding period of time measured from the recording
of such conveyance, unless the instrument contains a covenant by the
grantor that he will receive the consideration for such conveyance and
will hold the right to receive such consideration as a trust fund to be
applied first for the purpose of paying the cost of the improvement and
that he will apply the same first to the payment of the cost of the
improvement before using any part of the total of the same for any other
purpose. Nothing in this subdivision shall be construed as imposing upon
the grantee any obligation to see to the proper application of such
consideration by the grantor. Nothing in this subdivision shall apply to
a deed given by a referee or other person appointed by the court for the
sole purpose of selling real property. Nothing in this subdivision shall
apply to the consideration received by a grantor who, pursuant to a
written agreement entered into and duly recorded prior to the
commencement of the improvement, conveys to the person making such
improvement, the land upon which such improvement is made. However, such
a conveyance shall be subject to liens filed prior thereto, as provided
by this chapter. To the extent that the trust res consists of the right
to receive the consideration for such conveyance as distinct from the
consideration actually received, breach of the trust shall give rise to
a civil action only. The covenant provided for herein shall be deemed to
have been made and to be in full force and effect if, in lieu of the
foregoing provisions, a statement in substantially the following form is
contained in the instrument of conveyance, “subject to the trust fund
provisions of section thirteen of the lien law.”
Except that this section shall not apply to any mortgage taken by the
home owners’ loan corporation, a corporation created under an act of
congress, known as the “home owners’ loan act of nineteen hundred
thirty-three,” and the “home owners’ loan act of nineteen hundred
thirty-three as amended,” and said mortgage shall have priority over any
and all liens filed subsequent to the date of the recording of said
mortgage whether or not the cash and/or bonds for which said mortgage
has been taken as security, shall have been advanced at the time of the
execution of such mortgage or subsequent thereto, and it shall not be
necessary to execute and file any building loan contract or any other
contract, in compliance with this section or any part thereof.
(6) Every assignment of moneys, or any part thereof, due or to become
due under a contract for the improvement of real property shall contain
a covenant by the assignor that he will receive any moneys advanced
thereunder by the assignee and will hold the right to receive such
moneys as trust funds to be first applied to the payment of trust claims
as defined in section seventy-one of the lien law, and that he will
apply the same to such payments only, before using any part of the
moneys for any other purpose.
New York Lien Law Article 2, Chapter 33, Section 17: Duration of Lien
- 17. Duration of lien. No lien specified in this article shall be a
lien for a longer period than one year after the notice of lien has been
filed, unless within that time an action is commenced to foreclose the
lien, and a notice of the pendency of such action, whether in a court of
record or in a court not of record, is filed with the county clerk of
the county in which the notice of lien is filed, containing the names of
the parties to the action, the object of the action, a brief description
of the real property affected thereby, and the time of filing the notice
of lien; or unless an extension to such lien, except for a lien on real
property improved or to be improved with a single family dwelling, is
filed with the county clerk of the county in which the notice of lien is
filed within one year from the filing of the original notice of lien,
continuing such lien and such lien shall be redocketed as of the date of
filing such extension. Such extension shall contain the names of the
lienor and the owner of the real property against whose interest therein
such lien is claimed, a brief description of the real property affected
by such lien, the amount of such lien, and the date of filing the notice
of lien. No lien shall be continued by such extension for more than one
year from the filing thereof. In the event an action is not commenced to
foreclose the lien within such extended period, such lien shall be
extinguished unless an order be granted by a court of record or a judge
or justice thereof, continuing such lien, and such lien shall be
redocketed as of the date of granting such order and a statement made
that such lien is continued by virtue of such order. A lien on real
property improved or to be improved with a single family dwelling may
only be extended by an order of a court of record, or a judge or justice
thereof. No lien shall be continued by court order for more than one
year from the granting thereof, but a new order and entry may be made in
each of two successive years. If a lienor is made a party defendant in
an action to enforce another lien, and the plaintiff or such defendant
has filed a notice of the pendency of the action within the time
prescribed in this section, the lien of such defendant is thereby
continued. Such action shall be deemed an action to enforce the lien of
such defendant lienor. The failure to file a notice of pendency of
action shall not abate the action as to any person liable for the
payment of the debt specified in the notice of lien, and the action may
be prosecuted to judgment against such person. The provisions of this
section in regard to continuing liens shall apply to liens discharged by
deposit or by order on the filing of an undertaking. Where a lien is
discharged by deposit or by order, a notice of pendency of action shall
not be filed.
A lien, the duration of which has been extended by the filing of a
notice of the pendency of an action as above provided, shall
nevertheless terminate as a lien after such notice has been canceled as
provided in section sixty-five hundred fourteen of the civil practice
law and rules or has ceased to be effective as constructive notice as
provided in section sixty-five hundred thirteen of the civil practice
law and rules.
New York Lien Law Article 2, Chapter 33, Section 19: Discharge of Lien for private improvement
19. Discharge of lien for private improvement. A lien other than a
lien for labor performed or materials furnished for a public improvement
specified in this article, may be discharged as follows:
(1) By the certificate of the lienor, duly acknowledged or proved and
filed in the office where the notice of lien is filed, stating that the
lien is satisfied or released as to the whole or a portion of the real
property affected thereby and may be discharged in whole or in part,
specifying the part. Upon filing such certificate, the county clerk in
the office where the same is filed, shall note the fact of such filing
in the “lien docket” in the column headed “Proceedings had” opposite the
docket of such lien.
(2) By failure to begin an action to foreclose such lien or to secure
an order continuing it, within one year from the time of filing the
notice of lien, unless an action be begun within the same period to
foreclose a mortgage or another mechanic’s lien upon the same property
or any part thereof and a notice of pendency of such action is filed
according to law, but a lien, the duration of which has been extended by
the filing of a notice of the pendency of an action as herein provided,
shall nevertheless terminate as a lien after such notice has been
cancelled or has ceased to be effective as constructive notice.
(3) By order of the court vacating or cancelling such lien of record,
for neglect of the lienor to prosecute the same, granted pursuant to
section fifty-nine of this chapter.
(4) Either before or after the beginning of an action by the owner or
contractor executing a bond or undertaking in an amount equal to one
hundred ten percent of such lien conditioned for the payment of any
judgment which may be rendered against the property for the enforcement
of the lien:
- The execution of any such bond or undertaking by any fidelity or
surety company authorized by the laws of this state to transact
business, shall be sufficient; and where a certificate of qualification
has been issued by the superintendent of financial services under the
provisions of section one thousand one hundred eleven of the insurance
law, and has not been revoked, no justification or notice thereof shall
be necessary. Any such company may execute any such bond or undertaking
as surety by the hand of its officers, or attorney, duly authorized
thereto by resolution of its board of directors, a certified copy of
which resolution, under the seal of said company, shall be filed with
each bond or undertaking. Any such bond or undertaking shall be filed
with the clerk of the county in which the notice of lien is filed, and a
copy shall be served upon the adverse party. The undertaking is
effective when so served and filed. If a certificate of qualification
issued pursuant to subsections (b), (c) and (d) of section one thousand
one hundred eleven of the insurance law is not filed with the
undertaking, a party may except, to the sufficiency of a surety and by a
written notice of exception served upon the adverse party within ten
days after receipt, a copy of the undertaking. Exceptions deemed by the
court to have been taken unnecessarily, or for vexation or delay, may,
upon notice, be set aside, with costs. Where no exception to sureties is
taken within ten days or where exceptions taken are set aside, the
undertaking shall be allowed. - In the case of bonds or undertakings not executed pursuant to
paragraph a of this subdivision, the owner or contractor shall execute
an undertaking with two or more sufficient sureties, who shall be free
holders, to the clerk of the county where the premises are situated. The
sureties must together justify in at least double the sum named in the
undertaking. A copy of the undertaking, with notice that the sureties
will justify before the court, or a judge or justice thereof, at the
time and place therein mentioned, must be served upon the lienor or his
attorney, not less than five days before such time. Upon the approval of
the undertaking by the court, judge or justice an order shall be made by
such court, judge or justice discharging such lien. - If the lienor cannot be found, or does not appear by attorney,
service under this subsection may be made by leaving a copy of such
undertaking and notice at the lienor’s place of residence, or if a
corporation at its principal place of business within the state as
stated in the notice of lien, with a person of suitable age and
discretion therein, or if the house of his abode or its place of
business is not stated in said notice of lien and is not known, then in
such manner as the court may direct. The premises, if any, described in
the notice of lien as the lienor’s residence or place of business shall
be deemed to be his said residence or its place of business for the
purposes of said service at the time thereof, unless it is shown
affirmatively that the person servicing the papers or directing the
service had knowledge to the contrary. Notwithstanding the other
provisions of this subdivision relating to service of notice, in any
case where the mailing address of the lienor is outside the state such
service may be made by registered or certified mail, return receipt
requested, to such lienor at the mailing address contained in the notice
of lien. - Except as otherwise provided in this subdivision, the provisions of
article twenty-five of the civil practice law and rules regulating
undertakings is applicable to a bond or undertaking given for the
discharge of a lien on account of private improvements.
(5) Upon filing in the office of the clerk of the county where the
property is situated, a transcript of a judgment of a court of competent
jurisdiction, together with due proof of service of due notice of entry
thereof, showing a final determination of the action in favor of the
owner of the property against which the lien was claimed.
(6) Where it appears from the face of the notice of lien that the
claimant has no valid lien by reason of the character of the labor or
materials furnished and for which a lien is claimed, or where for any
other reason the notice of lien is invalid by reason of failure to
comply with the provisions of section nine of this article, or where it
appears from the public records that such notice has not been filed in
accordance with the provisions of section ten of this article, the owner
or any other party in interest, may apply to the supreme court of this
state, or to any justice thereof, or to the county judge of the county
in which the notice of lien is filed, for an order summarily discharging
of record the alleged lien. A copy of the papers upon which application
will be made together with a notice setting forth the court or the
justice thereof or the judge to whom the application will be made at a
time and place therein mentioned must be served upon the lienor not less
than five days before such time. If the lienor can not be found, such
service may be made as the court, justice or judge may direct. The
application must be made upon a verified petition accompanied by other
written proof showing a proper case therefor, and upon the approval of
the application by the court, justice or judge, an order shall be made
discharging the alleged lien of record.
New York Lien Law Article 2, Chapter 33, Section 20: Discharge of Lien after notice of Lien filed by payment of money into court
- 20. Discharge of lien after notice of lien filed by payment of money
into court. A lien specified in this article, other than a lien for
performing labor or furnishing materials for a public improvement, may
be discharged after the notice of lien is filed at any time before an
action is commenced to foreclose such lien, by depositing with the
county clerk, in whose office the notice of lien is filed, a sum of
money equal to the amount claimed in such notice, with interest to the
time of such deposit. After such deposit is made and the lien is
discharged the county treasurer or any other officer with whom the money
is deposited shall, within ten days thereafter, send a notice by mail to
the lienor, at the address given in the lien, that such lien has been
discharged by deposit. After action to foreclose the lien is commenced
it may be discharged by a payment into court of such sum of money, as,
in the judgment of the court or a judge or justice thereof, after at
least five days’ notice to all the parties to the action, will be
sufficient to pay any judgment which may be recovered in such action.
Upon any such payment, the county clerk shall forthwith enter upon the
lien docket and against the lien for the discharge of which such moneys
were paid, the words “discharged by payment. ” A deposit of money made
as prescribed in this section shall be repaid to the party making the
deposit, or his successor, upon the discharge of the liens against the
property pursuant to law. All deposits of money made as provided in this
section shall be considered as paid into court and shall be subject to
the provisions of law relative to the payment of money into court and
the surrender of such money by order of the court. An order for the
surrender of such moneys to the lienor or depositor may be made by any
court of record having jurisdiction of the parties. If no action is
brought in a court of record to enforce such lien, such order may be
made by any judge of a court of record. If application for such order is
made by lienor it shall be on notice to the depositor; if made by the
depositor then on notice to the lienor.
New York Lien Law Article 2, Chapter 33, Section 21
: Discharge of Lien for Public Improvement
- 21. Discharge of lien for public improvement. A lien against the
amount due or to become due a contractor from the state or a public
corporation for the construction or demolition of a public improvement
may be discharged as follows:
- By filing a certificate of the lienor or his successor in interest,
duly acknowledged and approved, stating that the lien is discharged. - By lapse of time as follows:
(a) When one year has elapsed since the filing of the notice of lien
or an extension thereof, unless, before the expiration thereof, either
an extension or an order continuing said lien has been filed in the
office where the notices are filed, or a notice of the pendency of an
action to enforce said lien has been filed as provided in section
eighteen of this article.
(b) When the period of time for which the lien has been continued by
order has expired, unless, before the expiration thereof, either an
order continuing said lien for a further period of time has been filed
in the offices where the notices are filed, or a notice of the pendency
of an action to enforce said lien has been filed as provided in section
eighteen of this article.
- By satisfaction of a judgment rendered in an action to enforce the
lien.
3-a. Under the provisions of subdivisions four, five and six of this
section a discharge of lien shall only operate to relieve the
comptroller of the state or the financial officer of the public
corporation or the officer or person with whom the lien is filed of any
and all liability imposed upon such officer by reason of the filing of
the lien. Such lien shall be a valid and subsisting lien for all other
purposes until discharged as prescribed by the provisions of the other
subdivisions of this section.
- By the contractor applying without notice to the supreme court of
this state or to any justice thereof or to the county judge of any
county for an order discharging such lien and depositing with the
comptroller of the state or the financial officer of the public
corporation, or the officer or person with whom the notice of lien is
filed, such a sum of money as is directed by a judge or a justice of the
court, which shall not be less than the amount claimed by the lienor,
with interest thereon for the term of one year from the time of making
such deposit, and such additional amount as the judge or justice deems
sufficient to cover all costs and expenses. The amount so deposited
shall remain with the comptroller or such financial officer or other
officer or person until the lien is otherwise discharged as prescribed
in this section.
(5) Either before or after the beginning of an action by a contractor
or subcontractor executing a bond or undertaking in an amount equal to
one hundred ten percent of such lien conditioned for the payment of any
judgement which may be recovered in an action to enforce the lien:
- The execution of any such bond or undertaking by any fidelity or
surety company authorized by the laws of this state to transact
business, shall be sufficient; and where a certificate of qualification
has been issued by the superintendent of financial services under the
provisions of section one thousand one hundred eleven of the insurance
law, and has not been revoked, no justification or notice thereof shall
be necessary. Any such company may execute any such bond or undertaking
as surety by the hand of its officers, or attorney, duly authorized
thereto by resolution of its board of directors, a certified copy of
which resolution, under seal of said company, shall be filed with each
bond or undertaking. Any such bond or undertaking shall be filed with
the state or the public corporation with which the notice of lien is
filed and a copy shall be served upon the adverse party. The undertaking
is effective when so served and filed. If a certificate of qualification
issued pursuant to subsections (b), (c) and (d) of section one thousand
one hundred eleven of the insurance law is not filed with the
undertaking, a party may except, to the sufficiency of a surety and by a
written notice of exception served upon the adverse party within ten
days after receipt, a copy of the undertaking. Exceptions deemed by the
court to have been taken unnecessarily, or for vexation or delay, may,
upon notice, be set aside, with costs. Where no exception to sureties is
taken within ten days or where exceptions taken are set aside the
undertaking shall be allowed. - In the case of bonds or undertakings not executed pursuant to
paragraph a of this subdivision, the owner or contractor shall execute
an undertaking with two or more sufficient sureties, who shall be free
holders, to the state or public corporation with which the notice of
lien is filed. The sureties must together justify in at least double the
sum named in the undertaking. A copy of the undertaking, with notice
that the sureties will justify before the court, or a judge or justice
thereof, at the time and place therein mentioned, must be served upon
the lienor or his attorney, not less than five days before such time.
Upon the approval of the undertaking by the court, judge or justice an
order shall be made by such court, judge or justice discharging such
lien. - If the lienor cannot be found, or does not appear by attorney, then
service under this subsection may be made as prescribed in paragraph c
of subdivision four of section nineteen of this article for the service
of an undertaking with notice of justification of sureties.
Notwithstanding the other provisions of this subdivision relating to
service of notice, in any case where the mailing address of the lienor
is outside the state such service may be made by registered or certified
mail, return receipt requested, to such lienor at the mailing address
contained in the notice of lien. - Except as otherwise provided in this subdivision, the provisions of
article twenty-five of the civil practice law and rules regulating
undertakings is applicable to a bond or undertaking given for the
discharge of a lien on account of public improvements. - Where a contractor has to his credit with the state or with a
public corporation, a sum of money by reason of an estimate due and
payable to him, and where payment of such estimate is withheld because a
notice of lien has been filed against his interest in said money, and
where said money is in excess of the amount claimed in the notice of
lien, the contractor may apply without notice to the supreme court of
this state or to any justice thereof or to the county judge of any
county, for an order discharging such lien and directing the comptroller
of the state or the financial officer or person with whom the lien is
filed, to retain from such estimate a sum of money, which shall not be
less than the amount claimed by the lienor, with interest thereon for
one year and such additional amount as the judge or justice deems
sufficient to cover all costs and expenses and to immediately pay over
the balance of such estimate to the contractor. The amount so retained
shall be held by the comptroller or such financial officer or other
officer or person until the lien is otherwise discharged as provided in
this section. The application for the order may be made upon an
affidavit of the contractor or his attorney and where there is of record
an assignment of all moneys the written consent of such assignee must be
presented to the court showing a proper case therefor.
6-a. Where a contractor has to his credit with the state, or with a
public corporation, a sum of money by reason of an estimate due and
payable to him, and where payment of such estimate is withheld because a
notice of lien has been filed against his interest in said money, and
where the amount due and payable under said estimate is at least one and
one-half times in excess of the amount stated to be due in said notice
of lien, the comptroller of the state or the financial officer or person
with whom the notice of lien is filed, may pay said estimate, after
deducting therefrom a sum which shall be one and one-half times the
amount stated to be due in said notice of lien, and said sum so deducted
shall be withheld until said lien is otherwise discharged, as provided
in this section.
- Where it appears from the face of the notice of lien that the
claimant has no valid lien by reason of the character of the labor or
materials furnished and for which a lien is claimed, or where the notice
of lien is invalid by reason of failure to comply with the provisions of
section twelve of this article, or where it appears from the public
records that such notice has not been filed in accordance with the
provisions of section twelve of this article, the contractor or any
other party in interest, may apply to the supreme court of this state,
or to any justice thereof, or to the county judge of the county in which
the notice of lien is filed, for an order summarily discharging of
record the alleged lien. A copy of the papers upon which application
will be made together with a notice setting forth the court or the
justice thereof or the judge to whom the application will be made at a
time and place therein mentioned must be served upon the lienor not less
than five days before such time. If the lienor can not be found, such
service may be made as the court, justice or judge may direct. The
application must be made upon a verified petition accompanied by other
written proof showing a proper case therefor, and upon the approval of
the application by the court, justice or judge, an order shall be made
discharging the alleged lien of record. - By order of the court vacating or canceling such lien of record,
for neglect of the lienor to prosecute the same, granted pursuant to
section twenty-one-a of this article.
New York Lien Law Article 2, Chapter 33, Section 24: Enforcement of Mechanic’s Lien
- 24. Enforcement of mechanic’s lien. The mechanics’ liens specified
in this article may be enforced against the property specified in the
notice of lien and which is subject thereto and against any person
liable for the debt upon which the lien is founded, as prescribed in
article three of this chapter.
New York Lien Law Article 2, Chapter 33, Section 39-C: Repossession of materials not used
- 39-c. Repossession of materials not used. If for any reason after
the work of a private or a public improvement of real property is
abandoned by an owner, a contractor or a subcontractor before the
completion thereof by such owner, contractor or subcontractor, or if,
after the same is completed, materials delivered are not used therefor,
a person who has delivered materials for the improvement which have not
been incorporated therein and for which he has not received payment may
repossess and remove such materials; and thereupon he shall have no lien
on the real property or improvements against persons secondarily liable,
for the price thereof, but he shall have the same rights in regard to
the materials as if he had never parted with the possession. This right
to repossess and remove the materials shall not be affected by their
sale, encumbrance, attachment, or transfer from the site of the
improvement, except that, if the materials have been so transferred, the
right to repossess them shall not be effective as against a purchaser or
encumbrancer thereof in good faith whose interest therein shall have
arisen since such transfer from the site of the improvement, or as
against a creditor attaching after such transfer. The right to
repossession and removal given by this section shall extend only to
materials whose purchase price does not exceed the amount remaining due
to the person repossessing; but where materials have been partly paid
for, the person delivering them may repossess them as allowed in this
section on refunding the part of the purchase price which has been paid
less the cost of removal.
New York Lien Law Article 2, Chapter 33, Section 38: Itemized statement may be required of Lienor
- 38. Itemized statement may be required of lienor. A lienor who has
filed a notice of lien shall, on demand in writing, deliver to the owner
or contractor making such demand a statement in writing which shall set
forth the items of labor and/or material and the value thereof which
make up the amount for which he claims a lien, and which shall also set
forth the terms of the contract under which such items were furnished.
The statement shall be verified by the lienor or his agent in the form
required for the verification of notices in section nine of this
chapter. If the lienor shall fail to comply with such a demand within
five days after the same shall have been made by the owner or
contractor, or if the lienor delivers an insufficient statement, the
person aggrieved may petition the supreme court of this state or any
justice thereof, or the county court of the county where the premises
are situated, or the county judge of such county for an order directing
the lienor within a time specified in the order to deliver to the
petitioner the statement required by this section. Two days’ notice in
writing of such application shall be served upon the lienor. Such
service shall be made in the manner provided by law for the personal
service of a summons. The court or a justice or judge thereof shall hear
the parties and upon being satisfied that the lienor has failed,
neglected or refused to comply with the requirements of this section
shall have an appropriate order directing such compliance. In case the
lienor fails to comply with the order so made within the time specified,
then upon five days’ notice to the lienor, served in the manner provided
by law for the personal service of a summons, the court or a justice or
judge thereof may make an order cancelling the lien.
New York Lien Law Article 2, Chapter 33, Section 39: Lien willfully exaggerated is void
- 39. Lien wilfully exaggerated is void. In any action or proceeding
to enforce a mechanic’s lien upon a private or public improvement or in
which the validity of the lien is an issue, if the court shall find that
a lienor has wilfully exaggerated the amount for which he claims a lien
as stated in his notice of lien, his lien shall be declared to be void
and no recovery shall be had thereon. No such lienor shall have a right
to file any other or further lien for the same claim. A second or
subsequent lien filed in contravention of this section may be vacated
upon application to the court on two days’ notice.
New York Lien Law Article 2, Chapter 33, Section 39-A: Liability of Lienor where Lien has been declared void on account of willful exaggeration
- 39-a. Liability of lienor where lien has been declared void on
account of wilful exaggeration. Where in any action or proceeding to
enforce a mechanic’s lien upon a private or public improvement the court
shall have declared said lien to be void on account of wilful
exaggeration the person filing such notice of lien shall be liable in
damages to the owner or contractor. The damages which said owner or
contractor shall be entitled to recover, shall include the amount of any
premium for a bond given to obtain the discharge of the lien or the
interest on any money deposited for the purpose of discharging the lien,
reasonable attorney’s fees for services in securing the discharge of the
lien, and an amount equal to the difference by which the amount claimed
to be due or to become due as stated in the notice of lien exceeded the
amount actually due or to become due thereon.
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