Thursday, November 29, 2012

Lien Law Section 19(6) is limited to "facial" defects

The summary discharge of a mechanic's lien can only be accomplished through one of the very limited, and specific, reasons set forth in Lien Law Section 19(6).  In Matter of Prospect Hgts. Rising Corp. the Kings County Supreme Court was again faced with a petition to discharge a mechanic's lien under Lien Law Section 19(6).  However, the Court determined that the "defect" claimed by the petitioner was not a "facial" defect as required by Lien Law Section 19(6).  Instead, the petitioner challenged that the mechanic's lien was filed late under New York law because although the body of the lien claimed that the last item of work was performed on February 11, 2011, a stop work order was issued on October 23, 2010.  The petitioner therefore argued that since all work was ordered stopped on October 23, 2010, no work could have possibly taken place thereafter and the February 11, 2011 date on the face of the mechanic's lien was incorrect.  The petitioner's argument went on to say that the lien was therefore defective under Lien Law section 10 because it was filed late.

In its analysis, the Court pointed out that its power was limited to the specific instances set forth in Lien Law Section 19(6).  In its analysis, the Court ultimately determined that the petitioner's argument necessarily required it to look past the face of the lien and would require an ultimate determination that the face of the mechanic's lien is incorrect.  Such a determination, the Court found, was beyond the power of Lien Law Section 19(6).  Therefore, the petition to discharge the mechanic's lien was denied and the Court noted that the petitioner's argument could only be raised in an action to foreclose the lien.

This decision is in line with the long standing case law and the statute it self.   I routinely field calls from owners, contractors and developers that want to challenge mechanic's liens for what they perceive to be "defects" in the lien.  However, these defects almost always go to the argument that something on the lien is "false."  The two most common arguments in this sense are that the lien amount is incorrect or that the last day of work is incorrect.  In either event, the proper way to challenge the lien is (usually) not through a Lien Law Section 19(6) petition but, rather, through a Lien Law Section 59 proceeding.  Lien Law Section 59 forces the lienor to foreclose within 30 days or face discharge of the lien.  This gives the petitioner two lines of attack.  Either the lien is not timely foreclosed upon and is discharged or it is foreclosed upon and the petitioner can then raise the "non facial" defects.

Vincent T. Pallaci is a partner at the law firm of Kushnick | Pallaci, PLLC.  His practice includes mechanic's lien foreclosure and defense and lien law special proceedings.  With offices in Long Island and Buffalo, New York, Kushnick | Pallaci, PLLC provides services to the construction industry across the State of New York.

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