I. How Long Does A Lien Last on A Private Improvement?

• Jurisdiction: New York

I. How Long Does a Lien Last on a Private Improvement?

A mechanic's lien filed against private property remains valid for one year, provided the proper affidavit of service is also filed. The year is calculated from the date of filing as stamped in the county clerk's office; if the lien form is amended, the one year is calculated from the original filing date.¹⁹⁴ Thus, it is a good idea to have your office copy of your lien form stamped by the county clerk when you file so there is no confusion about the date.

One of the thorniest issues for practitioners concerns the affidavit of service filing requirements that changed the private mechanic's lien filing procedures in 1988.¹⁹⁵ The change is significant because, according to the 1988 amendment, failure to comply voids or terminates the lien. Previously, the statute provided for discretionary service of the lien on the owner and specifically provided that failure to serve a copy of the lien on the owner did not otherwise void the lien. The amended statute specifically provides otherwise.

Within 30 days after filing the lien with the appropriate county clerk's office, the lienor "shall serve a copy of such notice upon the owner."¹⁹⁶ The statute goes into a long explanation as to the various methods of service that are available (certified mail, registered mail, personal delivery, affixing the notice, etc.). The problem for the practitioner (new or seasoned) concerns the following statutory proviso: "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."¹⁹⁷ Hence, an attorney may complete all the mechanic's lien filing requirements (name, owner, type of labor and services, verification, amount unpaid, etc.) and yet void the lien if he or she fails to properly serve the owner with a copy of the notice of lien within 30 days of filing with the county clerk or fails to file the appropriate affidavit of service with the county clerk within 35 days of when the lien was initially filed.

The practitioner's problems do not end with compliance under Lien Law § 11. Lien Law § 11-b sets forth a further notice and filing requirement: In addition to serving the owner with a copy of the notice of lien, the lienor also must serve a copy upon the contractor or subcontractor with whom he or she has a contract.¹⁹⁸ Moreover, a lienor having a direct contract with a subcontractor or a sub-subcontractor but not with a contractor shall also serve a copy of such notice by certified mail upon the contractor.¹⁹⁹ Additionally (as is the case under Lien Law § 11), "[f]ailure to file proof of such . . . service with the county clerk within thirty-five days after the notice of lien is filed shall terminate the notice as a lien."²⁰⁰ Hence, the practitioner must also serve a copy of the mechanic's lien upon the general contractor for the owner if he or she represents a sub-subcontractor or supplier. Failure to file the affidavit of service (confirming the requisite service or mailing) with the county clerk within 35 days of lien filing "terminates" the notice as a lien.

The Lien Law was amended again in 1996 to provide that the required copy of the lien could be served on the owner and pertinent contractor or subcontractor either within "five days before" or "thirty days after" the original notice of lien is filed.²⁰¹ The accompanying legislative memorandum noted that the purpose of the bill was to make the lien valid if the copy of the lien was served up to five days prior to filing. Due to a "strict construction" of the Lien Law, if a copy of the lien were served prior to the actual lien filing with the county clerk, the lien could be invalid.²⁰²

Not surprisingly, the relevant reported cases highlight the difficulties practitioners have had since enactment of the 1988 amendments. In Paolangeli v. Sopp,²⁰³ for example, the lienor moved for an order permitting him to file the affidavit of service required by Lien Law §§ 11 and 11-b nunc pro tunc. He filed the lien on December 16, 1988, and served the notice on the defendant (owner) on December 17, 1988. However, he failed to file proof of that service within 35 days as required by Lien Law § 11. The defendant cross-moved to declare the lien a nullity.

In a case of first impression, the court denied the motion to amend nunc pro tunc and granted the cross-motion. According to the court, in pertinent part:

While it is apparent that the purpose of the 1988 amendment was to assure that the notice of lien is promptly served, the clear language of the statute indicates that this requirement was to be enforced by having the lien expire unless proof of service was filed within 35 days. Since the statutory language is clear and unambiguous, there is no need for statutory construction. While section 23 of the Lien Law provides for liberal construction of that law's provisions, it does not authorize the court to ignore the plain meaning and clear effect of those provisions (see, Blackman-Shapiro Co. v Salzberg, 8 Misc 2d 972). Also, the court's power to correct a defect in the filing of a lien nunc pro tunc presupposes the existence of a valid lien (Matter of Long Beach Terrace v Mallis Wood Prods., 41 Misc 2d 915).²⁰⁴

Other cases confirm that the bar has had a difficult time trying to comply with the requirements and that a failure to comply is fatal. In Hui's Realty, Inc. v. Transcontinental Construction Services, Ltd.,²⁰⁵ for example, the First Department expressly ruled that Lien Law § 11 is clear and unambiguous. Even though a harsh disposition may occur, the courts must follow the result mandated by statute. Two weeks later in Murphy Construction Corp. v. Morrissey,²⁰⁶ the Third Department also dismissed a lien where the plaintiff served a copy of the notice upon defendants more than 30 days after filing and never filed proof of service with the county clerk. In Murphy, the lower court granted the motion to cancel the lien but only to the extent of ordering cancellation and discharge upon condition that defendants (owners) be required to post a $5,000 bond to insure payment of any judgment subsequently obtained by plaintiff contractor. Favorably citing Paolangeli,²⁰⁷ the Third Department modified the lower court's decision and completely discharged the lien, stating, in pertinent part:

It is uncontroverted that plaintiff failed to comply with the statutory requirements both with respect to service of a copy of the notice of lien and the filing of proof of such service, and a literal application of the statutory language would clearly require the unconditional grant of defendants' motion.

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Prior to the 1988 amendment to Lien Law § 11 (L. 1988, ch. 105, § 1), the section provided for discretionary service of a copy of the notice of lien "[a]t any time" following filing and that "failure to serve the notice does not otherwise affect the validity of such lien." The Legislature's amendment of the statute so as to substitute a peremptory provision for a permissive one is very strong evidence of its intent that the amended statute be mandatory in its application (see, McKinney's Cons Laws of NY, Book 1, Statutes §§ 177, 193, at 345, 357-358; see also, People v. Schonfeld, [74 N.Y.2d 324,] 328-329[, 547 N.Y.S.2d 266 (1989)]; Paolangeli v. Sopp, 145 Misc. 2d 259[, 546 N.Y.S.2d 322 (1989).]). We conclude, therefore, that [the] Supreme Court had no discretion to excuse plaintiff's noncompliance with Lien Law § 11 or to place any conditions upon the vacatur of plaintiff's lien.²⁰⁸

It is also clear, however, that if at the time the lienor filed its lien it had complied with all statutory filing requirements then in effect, subsequent amendments that changed filing procedures ²⁰⁹ would not render the lien ineffective at trial.²¹⁰

PRACTICE GUIDE

Don't wait! After the lien is filed, immediately serve a copy of the lien upon the owner and the general contractor or subcontractor. File the affidavit of service with the county clerk within a day or two of said mailing.²¹¹ As an added precaution, under no circumstances should the affidavit of service be filed with the county clerk more than 30 days after the lien was filed. Why wait 35 days?

Another case that highlights the mandatory strict filing requirements of Lien Law § 11 is United Lighting Inc. v. West Manor Constr. Corp.²¹² According to Judge Kern:

As an initial matter, answering defendant's cross-motion to dismiss plaintiff's first cause of action to foreclose on its mechanic's lien and recover under the surety bond is granted. Pursuant to Lien Law §§ 11 and 11-b, the lienor is required to serve a copy of the notice of lien upon the owner and contractor "[w]ithin five days before or thirty days after filing the notice of lien." It is well settled that strict compliance with Section 11's statutory requirements is mandated and courts do not have discretion to excuse non compliance. Westco Distribution Inc. v. Teclan Date Corp., 267 A.D.2d 173 (1st Dep't 1999); 146 W. 45th St. Corp v. McNally, 188 A.D.2d 410 (1st Dep't 1992); In re Hui's Realty v. Transcontinental Construction Services, Ltd., 168 A.D.2d 302 (1st Dep't 1990). Thus, failure to strictly comply with the service requirements of Section 11 requires the discharge of...