Queens Supreme Court says strict compliance with Demand to Foreclose Mechanic's Lien is not necessary

In In the Matter of the Applicaiton of East Port Excavation v. Arpielle Equipment Co., the Court was faced with the issue of whether a mechanic's lien filed against a public improvement should be discharged for failure to strictly comply with a demand to foreclose served upon the lienor under Lien Law Section 21-a.  The Lienor was apparently served with a demand that required it to foreclose, or show cause why its lien should not be discharged, by December 1, 2011.  The lienor did not foreclose and on December 2, 2011 a petition to discharge the liens was filed.  The lienor then commenced a foreclosure action upon the liens on December 5, 2011.  In its decision, the Court noted that Lien Law Section 21-a is "not a mandatory statute" and the lien does "not automatically get cancelled by noncompliance with the notice."  Finding that it must consider the equities, and noting that the Court has the power to excuse a failure to commence within the strict time frame set out in the notice, the Court denied the petition to discharge the liens.  The Court found that the petitioner had not been prejudiced by the delay of four days in commencing the action and, thus, equity demanded denial of the petition.

While this particular decision involved Lien Law Section 21-a and public liens, the same principal holds true for Lien Law Section 59 and private mechanic's liens.

Vincent T. Pallaci is a partner in the New York law firm of Kushnick Pallaci, PLLC where his practice focuses primarily on construction law, including the prosecution and defense of mechanic's liens.