By: Michael Irwin Silverstein Published: September 2013

A Notice of Mechanic's Lien is Void if it Fails to State the Date when Materials were Manufactured eventhough Not Delivered to a Project

Potential lienors must keep in mind that the categories of information required to be furnished in the contents for a notice of mechanic's lien by the Lien Law must be provided, even under circumstances where a literal reading of that statute would not seem to require the information to be furnished. So found a lienor, who had its lien discharged by a court in a recent case.

In 40 West 53rd Associates Ltd. Partnership v. H. Weiss Equipment Corp., 2011 WL 3022207 (N.Y.Sup. July 18, 2011), a tenant occupied the subject project (the "Property") and contracted with F.J. Sciame Construction Co., Inc. ("Sciame") to perform construction work on the Property. Sciame subsequently retained the H. Weiss Equipment Corp. ("H. Weiss") to perform additional work in connection with the Property. H. Weiss filed a mechanic's lien against the Property alleging that it was owed $222,000.00 for materials manufactured but not delivered to the Property (specifically manufactured hoods for installation in a commercial kitchen).

The owner of the Property brought on a special proceeding to discharge the lien. In its petition, the owner argued that the lien was defective and invalid, because it failed to comply with the requirements of New York Lien Law §9(6) ("Lien Law §9"), which provides that a notice of lien "shall" state the "time when the first and last items of work were performed and materials were furnished." New York Lien Law §9(6). Specifically, the owner argued that the information stated on the notice of lien was insufficient, because it failed to provide the required information regarding the time when the first and last items of work were performed and materials were furnished. In response, H. Weiss argued that its lien was valid, because the materials were never delivered to the Property and that, therefore, the required dates could not be provided in the notice of lien.

The court disagreed with H. Weiss, noting that a failure to set forth any date regarding when the first or last item of work was performed or materials supplied constitutes a jurisdictional defect which invalidates the notice of lien. The court also noted that Lien Law §9(6) exists in part to ensure the timely filing of a lien. In this case, the court found that because the notice of lien failed to provide the owner with any information regarding when the items were ordered, manufactured or produced, H. Weiss' mechanic's lien did not comply with the notice requirements of Lien Law §9(6) and, therefore granted the owner's petition and discharged the lien.

Lienors should be aware that when filing a mechanic's lien, all the categories of information required to be furnished by the Lien Law should be supplied, even if a literal reading of that statute would not seem to require the information. Of course, potential lienors should consult with an attorney knowledgeable in this field to be sure that their notice of mechanic's lien complies with the Lien Law and is valid and enforceable.

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