Friday, October 21, 2011

The amount of a mechanic's lien is a not a "facial defect" allowing summary discharge

This is hands down the biggest reason that people dispute mechanic's liens:  they do not agree that the amount set forth in the mechanic's lien is correct and think it should be discharged.  Every time I am presented with this scenario I have to explain that a mechanic's lien that is valid on its face cannot be summarily discharged and a dispute over the amount due is not an issue of facial validity.  In a decision out of the New York County Supreme Court this month this principle was yet again affirmed (as it has been over and over).  You can read the decision here

The case involved a general contractor commencing a special proceeding to discharge a subcontractor's mechanic's lien on two grounds: 1) the contractor argued that the mechanic's lien was exaggerated and therefore should be declared void under Lien Law Section  39; and 2) the contractor argued that the date of last performance was wrong and that the lien was therefore not timely.  In quickly denying the contractor's petition the Court noted Lien Law Section 19 and the oft quoted statement that "[a] court has no inherent power to vacate or otherwise discharge a mechanic's lien except as authorized under Lien Law [Section] 19(6)."  See Matter of Luckyland (N.Y.), LLC v. Core Continential Construction, 83 A.D.3d 1073 (2nd Dept. 2011).  The Court noted that neither of the contractor's challenges went to the sufficiency of the face of the mechanic's lien itself and therefore denied the petition noting that exaggeration can only be established at the trial of the foreclosure action. 

One other interesting little side note about this case is that the petition sought to compel foreclosure of the mechanic's lien pursuant to Lien Law Section 59.  The Court also denied this portion of the petition noting that the petitioner had totally failed to proceed as required under Lien Law Section 59 by serving a demand upon the lienor (personally) requiring foreclosure of the mechanic's lien within thirty (30) days. 

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

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