By: Thomas S. Tripodianos Published: September 2011

Recent Statutory Amendments Expand the Remedies Available for Non-Payment on Both Public and Private Construction Projects.

Two recent statutory amendments have expanded the remedies available for non-payment on both public and private construction projects. Consequently, owners', sureties', and contractors' exposure has been likewise expanded.

Lien Law Section 10 has been amended by adding a provision that states "and provided further where the notice of lien is for retainage, the notice of lien may be filed within 90 days after the date the retainage was due to be released." [A05022 / S. 3179]. Lienors on private projects now have up to 90 days to file a mechanics' lien after their retainage was due to be released. Prior to the amendment, lienors had as little as four months to file a lien "dating from the last item of work performed or materials furnished". Previously, lienors were arguably unable to file a lien for their unpaid retainage where the contract did not make retainage due until sometime after the old deadline to file a lien.

Section 1. Paragraph (b) of subdivision 4 of section 137 of the State Finance Law has been amended to read as follows: "b) Except as provided in section two hundred twenty-g of the labor law, no action on a payment bond furnished pursuant to this section shall be commenced after the expiration of one year from the date on which the public improvement has been completed and accepted by the public owner." [S. 3182 / A. 5025] Prior to the amendment the statute of limitations for initiating public work payment bond claims was measured from the date on which final payment under the claimant's subcontract became due. Very often an early completing trade found that its time for commencing an action on a payment bond had expired even though the project had not been completed. The amendment makes the date for calculating statute of limitations periods uniform for all claimants on any given project.


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