A Subcontractor Must Prove the Upstream Lien Fund

Reviewed September 7, 2026.

Proving that a subcontractor is unpaid does not by itself establish an enforceable lien against the owner’s property. The claimant must also address the applicable upstream payment obligation.

In IMP Plumbing & Heating Corp. v. 317 E. 34th St., LLC, 89 A.D.3d 593 (2011), the First Department reversed summary judgment for the plumbing subcontractor. Calculating the balance that would have been due if the general contractor fully performed did not address the owner’s supported allegations of breach and inadequate performance. The ruling left factual issues for resolution; it did not finally establish that nothing was owed.

Reconcile the contracts and payments

Under Lien Law § 4, the relevant fund includes earned unpaid amounts when the lien is filed and sums subsequently earned under the applicable contract, subject to the statute. Review changes, retainage, completion costs, offsets and payment timing. A snapshot showing no currently payable invoice may not answer the entire question.

An owner’s later payment does not necessarily erase an already attached lien. Service, notice and statutory payment protections matter. The subcontractor may also have direct contract, trust or bond remedies, each requiring separate review.

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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