By: Thomas S. Tripodianos Published: October 2008

Timely Commencement of Lien Foreclosure

Question. Lienor entered into an agreement to provide ready-mix concrete to subcontractor. Following nonpayment Lienor filed a mechanic's lien against the property on February 2nd. Lienor deposited in the mail a summons and complaint seeking to foreclose its lien and to recover damages from Subcontractor to the County Clerk between 4:30 P.M. and 5:00 P.M. on January 31st. It is undisputed that the summons and complaint were date/time stamped by County Clerk on February 3rd. Was the action timely commenced?

Answer. NO. Here, in order to be timely, plaintiff was required to commence an action to foreclose its lien on or before February 1st of the year following the filing of the lien. Lienor failed to provide clear and unequivocal evidence to rebut the presumption that the summons and complaint were received by the County Clerk on February 3rd, 2005-the date they were date stamped. Shame on the Lienor for waiting till the last minute to foreclose on its lien and then being too lazy to hand deliver the summons and complaint to the County Clerk.

The relevant New York statute (CPLR 304) provides that “An action is commenced by filing a summons and complaint …[F] iling shall mean the delivery of the … summons and complaint … to the clerk of the court in the county in which the action … is brought or any other person designated by the clerk of the court for that purpose …. At such time of filing, the original and a copy of such papers shall be date stamped by a court clerk who shall file the original and maintain a record of the date of the filing and who shall immediately return the copy to the party who brought the filing.”

The relevant date for commencement purposes is the date that the papers to be filed are received by the county clerk, not the date that the papers are mailed A “presumption exists that the actual filing date is the date the summons and verified complaint are stamped filed by the County Clerk. However, extraordinary circumstances may exist establishing that the actual filing of these documents occurred on an earlier date than that reflected on the stamp and, if clear and unequivocal evidence exists establishing that fact, it will serve to rebut the presumption”

There is one saving grace afforded the Lienor though. Pursuant to Lien Law § 54, even if a lien is invalid, a lienor may recover in an action on a contract against any party to the action ( see Lien Law § 54). The statute of limitations for such an action is six years ( see CPLR 213). By losing the lien though, Lienor is unable to reach the pockets of the owner or the surety on the bond given to discharge the lien.

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