Owner Consent Under Lien Law § 3: The Tomaselli Decision

Reviewed September 7, 2026.

A mechanic’s lien for work ordered by someone other than the owner requires evidence of the owner’s consent or request, or that of an authorized agent. Passive awareness of an improvement is not necessarily enough.

In Tomaselli v. Oneida County Industrial Development Agency, 77 A.D.3d 1315 (2010), an architect sought relief based on a lien. The Fourth Department reversed summary judgment for the architect and reinstated the owners’ answer. Neither side had resolved the factual questions about the debt and relevant consent sufficiently to obtain judgment.

The court explained that consent under § 3 can be inferred from an affirmative act or course of conduct. Mere acquiescence and benefit do not alone establish the required consent. The owners also failed to supply evidence conclusively establishing lack of consent.

Document the relationship and authorization

For tenant improvements or work arranged by an intermediary, retain the lease, alteration agreement, approvals, plans, instructions, permits and communications showing the owner’s role. Identify the person who authorized the work and the basis for any claimed agency.

The existence of consent does not answer every lien question. The claimant must also establish a qualifying improvement, the amount owed, an available lien fund where required, and compliance with filing, service and preservation rules. Nor does consent alone establish a personal contract claim against the owner.

Kushnick Pallaci PLLC assists clients throughout New York with mechanic’s lien enforcement and defense. Contact 631-752-7100 or vtp@kushnicklaw.com.

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