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Failure To Comply With Statutory Service Requirements Costs Contractor His Mechanic's Lien

By: Michael Irwin Silverstein
Published: August 2016

The requirements for serving a Notice of Mechanic’s Lien are straightforward:

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 *** 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

(Lien Law, §11).  However, as simple as they are, these service requirements are also strictly construed by our courts.  For example, in EK Mt Kisco, LLC v Arcon Const. Group, Inc., 138 A.D.3d 1118 (2d Dept. 2016), an owner commenced a proceeding pursuant to Lien Law § 19(6) to summarily discharge a mechanic’s lien, based on improper service.  The Appellate Division affirmed the lower court’s decision to grant the owner’s petition, discharging the mechanic’s lien, because:

the appellant failed to demonstrate that it complied with the requirements of Lien Law § 11, since its affidavit of service of the notice of the mechanic’s lien did not demonstrate that the notice was sent to the last known place of business of the petitioner EK Mt Kisco, LLC

(Id., at 138 A.D.3d 1119).  Here, as the lienor had specific knowledge of that last known address, its service at a different address was fatal to its lien, even though that other address had been specifically provided for in the contract.

Indeed, one of the cases cited by the Appellate Division in EK Mt Kisco, LLC, demonstrates just how strictly courts will enforce these service requirements. In    Thompson Bros. Pile Corp. v. Rosenblum, infra, a contractor who performed work on the home of an individual owner filed a mechanic’s lien and the home owner later moved to dismiss the lien foreclosure action.  The trial court denied the home owner’s motion, stating:  “In the instant matter, the Court finds that the notice of lien was served at the address provided by Jeffrey M. Rosenblum, for all purposes under the contract” (2012 WL 11980655 [N.Y.Sup. Nassau]).  In reversing the trial court, the Appellate Division noted that:

However, the plaintiff's affidavit of service of the mechanic's lien demonstrates that the plaintiff failed to serve the notice of the mechanic's lien in compliance with Lien Law § 11, as the notice was not sent to the defendants' last known place of residence. As strict compliance with the statutory requirements is mandated and the courts do not have discretion to excuse noncompliance (see Matter of HMB Acquisition Corp. v. F & K Supply, 209 A.D.2d 412, 618 N.Y.S.2d 422; 146 W. 45th St. Corp. v. McNally, 188 A.D.2d 410, 591 N.Y.S.2d 402), the Supreme Court should have granted that branch of the defendants' motion which was pursuant to Lien Law § 11 to dismiss the sixth cause of action, which was to foreclose a mechanic's lien

(Thompson Bros. Pile Corp. v Rosenblum, 121 A.D.3d 672, 674 [2d Dept. 2014]).  So, even where a lienor serves its notice of mechanic’s lien upon an owner at an address designated by that owner in a construction contract, if the lienor does not satisfy the service requirements of Lien Law §11, the lienor is at risk of losing his lien for improper service.

If you would like more information regarding this topic please contact Michael Irwin Silverstein at msilverstein@wbgllp.com, or call 914-607-6415.

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Please understand that this column provides general information only, and should not be construed as legal advice to anyone under any circumstances. The author reserves the right to modify any questions submitted so as to broaden their appeal. While we encourage you to contact us, you should not disclose to us any information that you consider confidential unless and until we have formally established an attorney-client relationship, and agreed to represent you in your particular matter. Citations to legal authority have been omitted.