By Victor M. Metsch
Your sub-contractor client has not been paid for work, labor and materials on a real estate construction job. She sends you copies of the sub-contract, a summary of the work done and the invoices. She asks you to prepare and file a mechanic’s lien.
Seems simple enough – take a standard pre-prepared form, fill in the blanks and file the lien. Nothing to it!
Of course, that was the easy part. Identifying possible defenses to a mechanic’s lien goes far beyond the narrow confines of the Lien Law. And defending the lien, if challenged, may give you—and your client—angina.
How can anything that, at the outset, seemed so uncomplicated, become so complex, time-consuming and expensive from both a prosecution and defense vantage point? Let’s take a look at some recent decisions that sustained, vacated or otherwise adjudicated mechanic’s liens.
A CHALLENGE TO ENFORCE OR DEFEND
Once a mechanic’s lien is filed, an action to foreclose must be commenced before the time limit to do so expires. Then, if the property owner defends, the real action begins.
For example, MCC Development Corp. v. Perla, 2011 N.Y. Slip Op. 00786 (1st Dept. Feb. 10, 2011), arose from an order granting a motion to dismiss the complaint and to discharge a mechanic’s lien.
The underlying construction contract required an initial decision by the architect as a condition precedent to mediation and mandated that mediation was a condition precedent to arbitration.
The causes of action for foreclosure of the mechanic’s lien arose out of the contract.
Accordingly, in affirming, the First Department found that “Supreme Court correctly dismissed the complaint [and] discharged the mechanic’s lien… on the ground that plaintiff failed to satisfy the contract’s conditions precedent to commencing litigation.”
EXHAUSTIVE AND EXHAUSTING
The grounds to challenge a lien are exhaustive and can be exhausting. In Mahan Construction Corp. v. 373 Wythe Realty, Inc., 2011 N.Y. Slip Op. 21032 (Sup Ct. Kings Co. Feb. 4, 2011) the court (Demarest, J) addressed a motion to discharge three mechanic’s liens. The third lien was the subject of the court’s decision.
The third lien in Mahan was challenged on five grounds, the last of which was that “[s]ervice of the notice of lien was insufficient[.]” The court summarily disposed of the first four grounds. However, the last objection was sustained.
The lien in Mahan was “served” on the corporate owner of the real estate by posting a true copy on a conspicuous place on the property.
Section 11 of the Lien Law requires that where a corporation is the owner of the property, service of the lien must be made by “leaving the same… personally” with one of several specifically-designated persons.
If such a person cannot be found, service can be made by posting the notice on the property between 9 a.m. and 4 p.m., or by registered or certified mail to the corporation’s last known place of business.
No evidence was supplied that service of the lien was attempted by any method other than posting.
As a result, the Mahan court discharged the lien against the property “due to insufficient service of the notice of lien,” because the corporate owner was not served “by one of the three specified methods.”
The court held that “[s]trict compliance with the statutory requirements is mandated and the court does not have discretion to excuse noncompliance.”
The court may be called upon to determine whether the lien is facially invalid. In 8 Catherine Street, LLC v. NJC Constr., Inc., 2010 N.Y. Slip Op. 52189(U) (Sup. Ct. New York Co. Nov. 17, 2010), the court (Schoenfeld, J) addressed a motion for an order discharging a mechanic’s lien based upon claims, among others, that the lien related to work that was not done within eight months of filing and that the amount thereof was exaggerated.
FACTUAL DISPUTE OR FACIAL DEFECT?
The court in Catherine Street noted that “Courts do not have inherent power to vacate or discharge a lien other than what is authorized under section 19 of the Lien Law[;]” and that, “[i]n general, where the dispute over the lien is a factual one rather than a dispute over a facial defect, the validity of the lien must await trial of the foreclosure action.”
The court, however, “[did] not read the rule that courts may not decide factual matters when considering a motion to vacate a lien under section 19(6) to mean that it cannot make a factual inquiry where … many of the facts are essential to determine whether a facial defect exists.”
The Catherine Street court held that the “[a]ccusations of fraud are serious[,]” and found that an “exceptional condition” existed.
The court referred the matter to a Judicial Hearing Officer to hear and report with recommendations. The reference covered several issues, including “whether the dates as they appear on the mechanics lien in this case [were] accurate with regard to the work Respondent performed and the material it furnished to Petitioners.”
In Park Place Carpentry & Builders, Inc. v. DiVito, 74 A.D.3d 928, 901 N.Y.S.2d 866, 2010 N.Y. Slip Op. 04976 (2d Dept. June 8, 2010), Supreme Court denied defendants’ cross-motion for summary judgment dismissing the complaint in an action to foreclose a mechanic’s lien. The Second Department affirmed.
The Appellate Division in Park Place held that “appellants failed to demonstrate, as a matter of law, that the subject mechanic’s lien was facially invalid [under section 19 of the Lien Law] or that the plaintiff willfully exaggerated the same and therefore, the lien was void pursuant to [section 19][.]”
The court noted that “[t]he fact that a lien may contain improper charges [or mistakes] does not, in and of itself, establish that a plaintiff willfully exaggerated a lien.”
But compare Bryan’s Quality Plus, LLC v. Dorime, 2011 N.Y. Slip Op. 00342 (2d Dept. Jan. 18, 2011), an action to foreclose on a mechanic’s lien in the amount of $257,950 (that included $192,000 in standby time).
The Supreme Court, Kings Co. (Ruchelsman, J.) reduced the lien to $65,950 and set the matter down for a hearing concerning the balance of the lien.
The Second Department reversed, noting that “[a] court has no power to vacate or discharge a notice of lien except as authorized [by Section 19(6) of the Lien Law][.]”
The Appellate Division held that the lien “was not defective on its face because it included charges by plaintiff subcontractor for standby time, since such charges may be the subject of a lien… and the validity of such charges will have to be determined at trial and [the] lien for those charges cannot be summarily discharged[.]”
In Bryan’s Quality,the Second Department also held that “[t]he Supreme Court’s determination that a hearing was necessary to explore the merits of the lien and whether it was valid did not provide a basis for a pre-answer framed-issue hearing.”
In the absence of a defect upon the face of the notice of lien, “any dispute regarding the validity of the lien must await trial thereof by foreclosure.”
EXAGGERATED LIENS
Courts often must determine whether or not a lien has been exaggerated. In CPN Mechanical, Inc. v. Madison Park Owner LLC, 2011 N.Y. Slip Op. 30124(U) (Sup. Ct. N.Y. Co. Jan. 11, 2011), the court (Goodman, J.) was called upon to address a motion, inter alia, pursuant to CPLR 3212 and Lien Law Sections 39 and 39-a, for partial summary judgment.
The defendant sought a judgment declaring the notice of mechanic’s lien time-barred by the eight-month rule of Section 10 of the Lien Law and assessing damages for the assertion of an exaggerated lien.
As to the first issue, the CPN Mechanical court found that “[plaintiff] [provide[d] evidence in support of the timeliness of the [l]ien as to its work.”
As to the second issue, the court found a question of fact as to whether certain unsigned change orders “[were] properly included in the liened amount.”
And the court concluded that “[s]ummary judgment is not available…if there is an issue of fact as to whether the amount sought in the lien has been exaggerated, or whether any such exaggeration was willful,” because “[t]he fact that a lien may contain improper charges does not, in and of itself, establish that a plaintiff willfully exaggerated a lien.”
The court may also be called upon to determine whether an undertaking is required. In IVM General Const. v. Neptune Estates, LLC, 2010 N.Y. Slip Op. 52188(U) (Sup. Ct. Kings Co. Dec. 16, 2010) the court (Demarest, J.) denied the defendant’s motion to dismiss the complaint and discharge the mechanic’s lien. However, the court granted the defendant’s request that the plaintiff be required to file an undertaking.
The court in IVM General Const. found “an issue of fact” as to whether final performance of the work was completed within eight months of the filing of the lien. And the motion to discharge the lien “[was] denied as the plaintiff substantially complied with the requirements of [section 9(4) of the Lien Law].”
However, a $100,000 undertaking was required, as a condition of continuing the lien, because the plaintiff had executed a waiver and final release “which [was] insufficiently explained.”
OWNER’S CONSENT
Another issue often confronted is whether or not the property owner consented to the work. In 534 West 42nd Street LLC v. BFI Const. Corp., 2010 N.Y. Slip Op. 33175(U) (Sup. Ct. N.Y. Co. Nov. 1, 2010), the court (Rakower, J.) denied a petition for an order discharging and cancelling a mechanic’s lien as facially invalid.
The petition was denied because the lienor allegedly failed to establish that the labor and materials “were furnished at the request of, or with the consent of” the owner of the property and did not state for whom the work was done.
The court in 534 West 42nd Street noted that Section 3 of the Lien Law required that the work must be performed at the “request of the owner[.]” The court also noted that Section 9 of Lien Law does not require that the notice of lien contain such a statement.
Therefore, because “a lien may be summarily denied only for defects appearing on its face,” the court held that the issue of whether the owner consented to performance of work at the subject property “must await trial of the foreclosure action.”
But compare Saratoga Associates Landscape Architects, Engineers and Planners, P.C. v. Lauter Development Group, 77 A.D.3d 1219, 910 N.Y.S.2d 571, 2010 N.Y. Slip Op. 07638 (3d Dept. Oct. 28, 2010), in which the Supreme Court, Albany Co, (Teresi, J.) granted a motion for summary judgment by an owner and dismissed an action to foreclose a mechanic’s lien. The Third Department affirmed.
In Saratoga Associates,the owner of the property submitted affidavits that denied that the owner had requested or consented to the work, thereby meeting the owner’s initial burden of proof and shifting the burden to the plaintiff to demonstrate the existence of a triable issue of fact.
The court found that the affidavit of the lienor’s president “was insufficient to meet that burden.” The opposing affidavits were based upon hearsay and were inadmissible. The lienor failed to proffer an excuse for the failure to present the evidence in admissible form.
And the owner’s “single act” of supplying approved plans to a principal of the lienor established “nothing more” than the owner’s “knowledge of and acquiescence in plaintiff’s work,” and was “insufficient to establish consent.”
In Ramos v. 145 Bleeker Street Corp., 26 Misc.3d 1237(A), 907 N.Y.S.2d 440, 2010 WL 956008, N.Y. Slip Op. 50439(U) (Sup. Ct. Kings Co. Mar. 15, 2010), the court (Lewis, J.) denied a cross-motion by defendants to dismiss a claim to foreclose a mechanic’s lien.
The court found that the movant had not consented to the contractor’s work on the project, noting that the issue “cannot be resolved on their motion to summarily vacate [the] lien” and “must await trial of [the] foreclosure action.”
The court also held that where “the dispute as to the validity of [a] mechanic’s lien goes beyond the face of the notice of lien it cannot be resolved on [a] motion to discharge the lien prior to trial.”
See also Tomaselli v. Oneida County Indus. Development Agency, 77 A.D.3d 1315, 908 N.Y.S.2d 477 (4th Dept. Oct. 1, 2010). The Supreme Court granted summary judgment in favor of the holder of a mechanic’s lien.
The Fourth Department reversed noting that “[t]he term ‘consent’ within the meaning of [Section 3 of the Lien Law] ‘is not mere acquiescence and benefit, but [it is] some affirmative act or course of conduct establishing confirmation [and] [s]uch consent may be inferred from the …conduct of the owners[s].”
The Appellate Division found that “the owner[s] must either be an affirmative factor in procuring the improvement to be made, or having possession and control of the premises assent to the improvement in the expectation that [they] will reap the benefit[.]”
The court in Tomaselli concluded that, “[o]n the record before us, we conclude that there are triable issues of fact” that precluded judgment in favor of either party.
Defenses to foreclosure to a mechanic’s lien are often contract/fact specific. Kaback Enterprises, Inc. v. Oxford Const. Development, Inc, 2010 N.Y. Slip Op. 33722(U) (Sup. Ct. N.Y. Co. December 27, 2010) was an action by a construction manager/sub-contractor (Kaback) to enforce a mechanic’s lien in the amount of $67,278.50.
The court (Wooten, J.) was called upon to decide a CPLR 3211(a) defense based upon documentary evidence. The prime contract provided for a so-called “guaranteed maximum payment”. The record established that the fixed amount provided in the contract had been paid in full.
The court in Kaback noted that the owner was only required to pay the prime contractor the amount set forth in the contract. The court found that the contract amount had been paid, as established by a “Final Payment Directive,” “as well as the cancelled checks showing that payment [thereon] was made.”
The court held that “[p]ursuant to [Section 3 of the Lien Law], subcontractors do have an unqualified right to place a mechanic’s lien, even if the totality of the liens exceeds the amount then owing on the contract[.]”
However, Section 4(1) of the Lien Law expressly provides that “the lien shall not be for a sum greater than the sum earned and unpaid on the contract” and “[i]n no case shall the owner be liable to pay… a sum greater than the value… remaining unpaid, at the time of filing of notices of such liens.”
In Kaback,the court noted that “no individual mechanics’ lien can exceed the amount owed by the owner to the general contractor at the time of filing the lien”.
The court held that the provision of the Lien Law “was enacted to limit the liability of the owner in the aggregate to the amount which he had contracted to pay.” Accordingly, the court held that, “in the absence of any balance due to [the general contractor] from the owners, plaintiff is required to look to the contractor that engaged its services for payment.”
THRESHOLD ISSUES
Threshold issues, such as whether or not the plaintiff/contractor was licensed, often must be addressed. InQuick Start Const. Corp. v. Staiger, 77 A.D.3d 900, 910 N.Y.S.2d 131, 2010 N.Y. Slip Op. 07731 (2d Dept. Oct. 26, 2010), the plaintiff-contractor filed a mechanic’s lien against defendants’ property in the amount of $65, 905 for renovations to their home.
Defendants moved for summary judgment dismissing the action to foreclose the lien.
Defendants claimed that the plaintiff was not a licensed home improvement contractor in Suffolk County and that a home improvement contractor must plead possession of a valid license in order to commence an action to foreclose a mechanic’s lien. The Supreme Court denied the motion.
The Appellate Division in Quick Start affirmed. The plaintiff had pleaded that he was a duly licensed home improvement contractor in Suffolk County. And the plaintiff had submitted a copy of a license issued to “Robert M. Chiarello doing business as Quick Start Construction Corp.”
In addition, the Second Department found that defendants “failed to make a prima facie showing that the license did not encompass the plaintiff, as well as its principal, Robert M. Chiarello.”
In Tom Winter Associates, Inc. v. Sawyer, 72 A.D.3d 803, 898 N.Y.S.2d 480, 2010 N.Y. Slip Op. 03111 (2d Dept. Apr. 13, 2010), the Supreme Court denied defendants’ motion to dismiss the complaint in an action to foreclose a mechanic’s lien.
The motion was denied on the ground that the plaintiff was engaged in the unlicensed practice of architecture. The Second Department affirmed.
The Appellate Division found that “the complaint and the affidavits submitted by the plaintiff to remedy any defects in the complaint did not demonstrate that the plaintiff “was engaged in the unlicensed practice of architecture.”
RULES OF THE (MECHANIC’S LIEN) ROAD
In order to avoid time bars, beware of the eight-month filing requirement and the one-year prosecution statute of limitations.
In order to avoid summary dismissal for facial insufficiency, carefully verify all information on the notice of lien.
In order to avoid dismissal, double check that the work is covered by the Lien Law, as well as the proof of the request or consent of owner of the property for the work to be done.
And, in order to avoid forfeiture or penalties due to exaggeration of the lien, meticulously examine the amounts claimed to be due.
Victor M. Metsch is a Senior Litigation/ADR Partner at Hartman & Craven LLP.