B. Type of Work Or Materials For Which A Lien May Be Filed

• Jurisdiction: New York

B. Type of Work or Materials for Which a Lien May Be Filed

Although the types of improvements that are lienable are extremely varied, the courts have held that the improvement generally must be one that is so integrated into the structure that it becomes a permanent part of it. Examples are numerous.⁴⁷ The following materials, labor or services have been held to be lienable:

1. Wall-to-wall carpeting, if nailed to flooring.⁴⁸

2. Drawings of plans and specifications.⁴⁹

3. Appliances such as refrigerators, air conditioners, washers and dryers which have been installed.⁵⁰

4. Electric fixtures installed on the property.

5. Rental value of temporary storage and office facilities at the construction site for the improvement.⁵¹

6. Supplying temporary gravel and fill for a construction site.

7. Architect's professional services.⁵²

8. Labor charge for "premium" time.⁵³

9. Labor or equipment charges for standby time.⁵⁴

10. Actual waste removed from a three-building site of thousands of yards of construction debris, unloading of mini containers into garbage trucks, dropping off roll-up containers, using trucks to transport debris to appropriate disposal site.⁵⁵

11. Scaffolding (special adaptation).⁵⁶

12. Certain pre-construction management services.⁵⁷

13. Rental value for the actual use of machinery, tools and equipment.⁵⁸

The courts have held that the following items are not lienable:

1. Mowing, trimming, pruning and spraying plants.⁵⁹

2. Attorney fees.

3. Services of a construction financing consultant.⁶⁰

4. Lost profits.⁶¹

5. Mere acceptance of construction debris or waste does not constitute an improvement as that term is defined in Lien Law § 2(4).⁶² But compare case holdings in note 52, supra.

6. Installation of modular workstations.⁶³

7. Installation of battery-operated mechanical roller shades to cover windows at a bar and lounge.⁶⁴

8. Decorating services, including selection of fabrics, easily moved furniture, selection of furnishings, space planning, supervision of furniture restoration, curtain making and upholstery work, were not a "permanent improvement."⁶⁵

9. Installation and insertion of various machinery parts in contractors' equipment used at site are not lienable because they do not go into real property improvement and equipment is returnable to contractor or subcontractor for use at a different site.⁶⁶

10. Security guard services. (They are auxiliary to the structure and one step removed from actual demolition or construction.)⁶⁷

11. Gloves, safety nettings, cable ties, traffic cones, duct tape, safety vests, rain suits.⁶⁸

12. Construction phasing and the preparation of construction budgets.⁶⁹

13. Post completion inspection work and the removal of nonconforming materials.⁷⁰

Materials utilized in an improvement that have been supplied by a materialman directly to an owner, contractor or subcontractor generally are lienable; items supplied by one materialman to another materialman are not lienable. Given that " 'materialman' . . . means any person who furnishes material . . . either to an owner, contractor or subcontractor, for, or in the prosecution of, such improvement,"⁷¹ a materialman of a materialman cannot file a lien against a private or public improvement.⁷² Practically speaking, the Legislature had to draw the line somewhere. Otherwise, any materialman even remotely associated with the materials used on the improvement could file a lien.⁷³

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Notes:

^[47] Lien Law § 2(4). However, "certain relocation costs" (which clearly are not a permanent improvement) may be recovered by the City of New York under the provisions of New York's mechanic's lien law by virtue of a special NYC Administrative Code provision, § 26-305 (expenses of relocation pursuant to vacate order). See Rivera...