In Tomaselli v. Oneida Industrial Development Agency, the Appellate Division in the 4th Department examined whether an architect was entitled to summary judgment on his action to foreclose upon a mechanic's lien. In this case the Court notes that neither the plaintiff architect nor the defendant owners have established whether there was any money due from to the architect and, even if there was, neither has established that the work was done with the consent of the owners. The court notes that "consent within the meaning of Lien Law Section 3 is not mere acquiescence and benefit, but it is some affirmative act or course of conduct establishing confirmation." Unfortunately this decision gives us little guidance as to exactly what type of interaction there was on this project by the owners in terms of the architects works. In fact the decision notes that the owners failed to submit evidence that they did not consent to the improvement of the property. While this case is of little guidance in terms of factual scenarios that will lead to consent, it nevertheless is a reminder that consent is a key factual and legal issue in determining whether someone that did not contract directly with the owner of the property can enforce a mechanic's lien against that property.
Often, the issue of consent comes up in improvements carried out and paid for by tenants. Landlord-owners will almost always raise a defense that they did not consent to the work. Without written documents (and sometimes even with them) proving that the landlord owner consented to the work can be very difficult for the lienor seeking to enforce his, her or its mechanic's lien.
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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