The answer is found in Lien Law Section 3. The statute states that “a contractor, subcontractor, laborer, materialman…” or “HIS agent, contractor, or subcontractor” can file a lien. Therefore, you must be an agent, contractor (C2) or subcontractor (S2) to the original contractor (C1), subcontractor(S1) or materialman (M1). Some cases have held that only those subcontractors who are no more remote from the contractor than persons performing labor for or furnishing materials to one who has contracted with the contractor may file a mechanic's lien. However, does the limitation apply to only private projects or does it apply to public projects as well?
Most cases limiting the right of a sub-sub-subcontractor or materialman to a sub-sub contractor to file a mechanic's lien have been determined in the context of a public project. Lien Law Section 5 governs public projects. Lien Law Section 3 governs private projects. While the language in both statutes is nearly identical as to who can file a mechanic's lien, the statutes are in fact separate. Since all of the cases addressing the issue have been interpreting Lien Law Section 5, it is arguable that any tier of contractor or material supplier can file a mechanic's lien on a private project. The tiers are undoubtedly limited on a public project.
Vincent T. Pallaci is a partner at the New York law firm of Kushnick Pallaci, PLLC where his practice focuses primarily on the area of construction law. He can be reached at (631) 752-7100 or vtp@kushnicklaw.com
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