Preserving a Defendant Lienor’s Claim: Edwards & Zuck v. Cappelli

Reviewed September 7, 2026.

Edwards & Zuck, P.C. v. Cappelli Enterprises, Inc., 124 AD3d 181 (3d Dept 2014), illustrates the importance of the pleadings when another lienor starts a foreclosure action. Cives Corporation’s original answer identified its lien, claimed priority and requested a determination of its lien rights, but did not expressly plead foreclosure counterclaims and cross claims.

The court allowed amendment because the complaint, answer and other pleadings together sufficiently preserved Cives’ rights under Lien Law § 44(5). There was no prejudice or surprise, and the proposed claims were not without merit.

A significant timing correction

The original version of this article incorrectly said the amendment motion was filed before the lien’s stated expiration. The decision records an April 25, 2012 extension date and an August 2012 motion. The court’s reasoning depended on rights preserved by the existing pleadings, not simply a pre-expiration motion. A proposed amended answer had been circulated in April.

The court expressly favored asserting the necessary counterclaims and cross claims in the original answer before expiration. Being named as a defendant does not excuse a lienor from responding and preserving its own claim. The statute includes an exception where the lien is admitted in the complaint and uncontested by another defendant, but relying on that exception can be risky if the original action is discontinued or separate relief becomes necessary.

Review the complaint, answer deadline, lien duration and requested relief together. A motion to amend is not a universal way to revive an expired or waived lien.

Kushnick Pallaci PLLC assists clients throughout New York with mechanic’s lien enforcement and defense. Contact 631-752-7100 or vtp@kushnicklaw.com.

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