Appellate Division Comments on Factors to Establish Owner's Consent

In order to foreclose on a mechanic's lien where the work was performed by a tenant, the lienor must establish that the work that was performed was performed with the landlord/owner's consent.  In Americon Const. Inc. v. Radu Physical Culture, the Court affirmed a judgment of the trial court where the a foreclosure judgment was entered in the lienor's favor.  The Court noted that the owner's consent to the work had been established because: 1) the lease between the tenant and owner specifically contemplated the improvements at issue; 2) the owner approved the hiring of the lienor as well as the construction plans that were followed; 3) the owner obtained the permits for the subject work; 4) the owner was "actively involved" in the work and attended site meetings; 5) employees of the owner e-mailed the lienor inquiring as to how it could help start the construction; and 6) the owner received the benefit of the improvements because it re-entered the space.

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