New York Mechanics Liens: How Hard Are They to Discharge?
After a New York mechanics lien is filed, is there anyway an owner can bring a motion in court to discharge that lien filing before trial? There certainly is, but it is important to understand the limitations. This involves New York lien statute 19(6) which allows the owner to apply for a summary discharge order of the mechanic’s lien in New York. Many think it is a “mini trial” in which the amount of the lien, how much services were performed, back-charges, contested change orders, and other adjustments are determined. But this is not the case. A lien in New York through court action can only adjudicate errors on the “face” of the mechanic’s lien filing.
For example, assume there is a mechanics lien dispute as to work done to a parking lot and rear retaining wall. The old wood retaining wall was 100 ft. in length and leaking onto the lot. The specifications are clear that only 50 ft. were to be replaced with an additional redwood retaining wall. But in the course of demo, it was determined drainage and gravel should be added and that it would be much more secure to install a CMU wall for the 50 ft. Long story short, the contractor ended up doing the entire 100 ft. based on conversations authorizing this work and directions given by the building inspector. There is now a major dispute as to the amount of the New York lien. Assuming that the mechanic’s lien filed has the proper wording and was recorded on time, this motion is not proper to determine those issues; this must be at trial.
A popular way to discharge a mechanic’s lien under a motion is as follows:
1. Improper “character of labor or materials furnished.” A lien can be filed for almost any labor, materials, or equipment that improves the property. On the other hand, services such as title searches, attorneys work, general consultation, feasibility studies, materials delivered from a manufacturer to a supply house, routine maintenance, or work to movable property, would not be covered under a New York mechanic’s lien.
2. Failure to comply with Section 9 of the New York Lien Act. This applies if the wording is incorrect on the mechanic’s lien itself. Our forms follow strictly the statutory mandates. But to be clear, here is a copy of Section 9:
§ 9. Contents of notice of lien. The notice of lien shall state:
(1) 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.
(2) 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.
(3) 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.
(4) 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.
(5) The amount unpaid to the lienor for such labor or materials.
(6) The time when the first and last items of work were performed and materials were furnished.
(7) 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. A failure to state the name of the true owner or contractor, or a description 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.