New York Lien Law
ARTICLE 3
ENFORCEMENT OF LIENS
ON REAL PROPERTY
Section
40. Construction of article.
41. Enforcement of mechanic`s lien on real property.
42. Enforcement of a lien under contract for a public
improvement.
43. Action in a court of record; consolidation of actions.
44. Parties to an action in a court of record.
44-a. Foreclosure of mortgage; lienors defendants.
45. Equities of lienors to be determined.
46. Action in a court not of record.
47. How summons served, when personal service cannot be made.
48. Proceedings on return of summons; answer; judgment by
default.
49. Issue, how tried; judgment.
50. Execution.
51. Appeals from judgments in courts not of record.
52. Transcripts of judgments in courts not of record.
53. Costs and disbursements.
54. Judgment in case of failure to establish lien.
55. Offer to pay money into court, or to deposit securities,
in discharge of the lien.
56. Preference over contractors.
57. Judgment may direct delivery of property in lieu of money.
58. Judgment for deficiency.
59. Vacating of a mechanic`s lien; cancellation of bond;
return of deposit, by order of court.
60. Judgment in action to foreclose lien on account of public
improvement.
61. Judgment in action to foreclose a mechanic`s lien on
property of a railroad corporation.
62. Bringing in new parties.
63. Service of answer on state or public corporation.
64. Award of personal judgment by court or referee.
65. Arrears/past due support.
S 40. Construction of article. This article is to be construed in
connection with article two of this chapter, and provides proceedings
for the enforcement of liens for labor performed and materials furnished
in the improvement of real property, created by virtue of such article.
S 41. Enforcement of mechanic`s lien on real property. A mechanic`s
lien on real property may be enforced against such property, and against
a person liable for the debt upon which the lien is founded, by an
action, by the lienor, his assignee or legal representative, in the
supreme court or in a county court otherwise having jurisdiction,
regardless of the amount of such debt, or in a court which has
jurisdiction in an action founded on a contract for a sum of money
equivalent to the amount of such debt.
S 42. Enforcement of a lien under contract for a public improvement. A
lien for labor done or materials furnished for a public improvement may
be enforced against the funds of the state or the public corporation for
which such public improvement is constructed or demolished, to the
extent prescribed in article two of this chapter, and against the
contractor or subcontractor liable for the debt, by a civil action, in
the same court and in the same manner as a mechanic`s lien on real
property.
S 43. Action in a court of record; consolidation of actions. The
provisions of the real property actions and proceedings law relating to
actions for the foreclosure of a mortgage upon real property, and the
sale and the distribution of the proceeds thereof apply to actions in a
court of record, to enforce mechanics` liens on real property, except as
otherwise provided in this article. If actions are brought by different
lienors in a court of record, the court in which the first action was
brought, may, upon its own motion, or upon the application of any party
in any of such actions, consolidate all of such actions.
S 44. Parties to an action in a court of record. In an action in a
court of record to enforce a lien against real property or a public
improvement, the following are necessary parties defendant:
1. All lienors having liens notices of which have been filed against
the same real property or public improvement, or any part thereof, prior
to the filing of the notice of lis pendens in such action, where by law
the filing of a notice of lis pendens is proper or required.
2. All persons having subsequent liens or claims against such real
property, by judgment, mortgage or otherwise, filed, docketed or
recorded prior to the filing of the notice of lis pendens, where by law
the filing of a notice of lis pendens is proper or required.
3. All persons appearing by the records in the office of the county
clerk or register to be owners of such real property or any part
thereof.
4. Where by law, a notice of lis pendens may not be filed in such
action, all lienors having liens notices of which have been filed
against the same real property, and all persons having subsequent liens
or claims against such real property, by judgment, mortgage or
otherwise.
5. Every defendant who is a lienor shall, by answer in the action, set
forth his lien, or he will be deemed to have waived the same, unless the
lien is admitted in the complaint, and not contested by another
defendant. The allegations is the answer of a defendant lienor shall be
deemed denied by the other lienors in said action without the necessity
of serving replies. Two or more lienors having liens notices of which
have been filed against the same real property or public improvement, or
any part thereof, may join as plaintiffs.
6. The state, when the lien is one filed against funds of the state
for which the public improvement is constructed or demolished. In such a
case, the summons must be served upon the attorney-general, who must
appear in behalf of the people.
S 44-a. Foreclosure of mortgage; lienors defendants. In an action to
foreclose a mortgage upon such real property only such persons who shall
have filed notices of lien prior to the filing of the notice of lis
pendens in such action shall be deemed to be necessary parties to such
action.
S 45. Equities of lienors to be determined. The court may adjust and
determine the equities of all the parties to the action and the order of
priority of different liens, and determine all issues raised by any
defense or counterclaim in the action. But in no case shall the court
determine any issue between the state and the contractor where a claim
has been or can be submitted to the court of claims for adjudication and
in case a counterclaim is set forth by any defendant in his answer, such
defendant shall be deemed to have waived a trial by jury of the issues
raised thereby.
S 46. Action in a court not of record. If an action to enforce a
mechanic`s lien against real property is brought in a court not of
record, it shall be commenced by the personal service upon the owner of
a summons and complaint verified in the same manner as a complaint in an
action in a court of record. The complaint must set forth substantially
the facts contained in the notice of lien, and the substance of the
agreement under which the labor was performed or the materials were
furnished. The form and contents of the summons shall be the same as
provided by law for the commencement of an action upon a contract in
such court. The summons must be returnable not less than twelve nor more
than twenty days after the date of the summons, or if service is made by
publication, after the day of the last publication of the summons.
Service must be made at least eight days before the return day.
S 47. How summons served, when personal service cannot be made. If
personal service of the summons cannot be made upon a defendant in an
action in a court not of record, by reason of his absence from the
state, or his concealment therein, such service may be made by leaving a
copy thereof at his last place of residence and by publishing a copy of
the summons once in each of three successive weeks in a newspaper in the
city or county where the property is situated.
S 48. Proceedings on return of summons; answer; judgment by default.
At the time and place specified in the summons for the return thereof,
in a court not of record, issue must be joined, if both parties appear,
by the defendant filing with the justice a verified answer, containing a
general denial of each allegation of the complaint, or a specific denial
of one or more of the material allegations thereof; or any other matter
constituting a defense to the lien or to the claim upon which it is
founded. If the defendant fail to appear on the return-day, on proof by
affidavit of the service of the summons and complaint, judgment may be
rendered for the amount claimed, with costs.
S 49. Issue, how tried; judgment. If issue is joined in such action in
a court not of record, it must be tried in the same manner as other
issues in such court, and judgment entered thereon, which shall be
enforced, if for the plaintiff, in the manner provided in the following
section. If for the defendant, in the same manner as in an action on
contract in such court.
S 50. Execution. Execution may be issued upon a judgment obtained in
an action to enforce a mechanic`s lien against real property in a court
not of record, which shall direct the officer to sell the title and
interest of the owner in the premises, upon which the lien set forth in
the complaint existed at the time of filing the notice of lien.
S 51. Appeals from judgments in courts not of record. An appeal may be
taken from such judgment rendered in a court not of record, according to
the provisions of law regulating appeals from judgments in actions on
contract in such courts.
S 52. Transcrips of judgments in courts not of record. When a judgment
is rendered in a court not of record, the justice or judge of the court
in which it is tried, or other person authorized to furnish transcripts
of judgments therein, shall furnish the successful party a transcript
thereof, which he may file with the clerk of the county with whom the
notice of lien is filed. The filing of such transcript has the same
effect as the filing of a transcript of any other judgment rendered in
such courts.
S 53. Costs and disbursements. If an action is brought to enforce a
mechanic`s lien against real property in a court of record, the costs
and disbursements shall rest in the discretion of the court, and may be
awarded to the prevailing party. The judgment rendered in such an action
shall include the amount of such costs and specify to whom and by whom
the costs are to be paid. If such action is brought in a court not of
record, they shall be the same as allowed in civil actions in such
court. The expenses incurred in serving the summons by publication may
be added to the amount of costs now allowed in such court.
S 54. Judgment in case of failure to establish lien. If the lienor
shall fail, for any reason, to establish a valid lien in an action under
the provisions of this article, he may recover judgment therein for such
sums as are due him, or which he might recover in an action on a
contract, against any party to the action.
S 55. Offer to pay money into court, or to deposit securities, in
discharge of the lien. At any time after an action is brought under the
provision of this article, the owner may make and file with the clerk
with whom the notice of lien is filed, if in a court of record, and if
in a court not of record, with the court, an offer to pay into court the
sum of money stated therein, or to execute and deposit securities which
he may describe, in discharge of the lien, and serve upon the plaintiff
a copy of such offer. If a written acceptance of the offer is filed with
such clerk, or court, within ten days after its service, and a copy of
the acceptance is served upon the party making the offer, the court,
upon proof of such offer and acceptance, may make an order, that on
depositing with such clerk, or court, the sum so offered, or the
securities described, the lien shall be discharged, and that the money
or securities deposited shall take the place of the property upon which
the lien existed, and shall be subject to the lien. If the offer is of
money only, the court, on application and notice to the plaintiff may
make such order, without the acceptance of the offer by the plaintiff.
If such action is brought in a court not of record, such order may be
made by the county court of the county where such action is brought upon
notice, and upon filing such order and depositing such sum of money or
securities with the county clerk of such county, he shall forthwith
discharge said notice of lien, by writing upon the margin of the record
thereof, the words "discharged by payment." Money or securities
deposited upon the acceptance of an offer pursuant to this section shall
be held by the clerk or the court until the final determination of the
action, including an appeal.
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S 56. Preference over contractors. When a laborer, subcontractor or
material man shall perform labor or furnish materials for an improvement
of real property or for a public improvement, for which he is entitled
to a mechanic`s lien, the amount due to him shall be paid out of the
proceeds of the sale of such property or out of the moneys of the state
or public corporation applicable to the construction or demolition of
the public improvement, under any judgment rendered pursuant to this
article, before any part of such proceeds is paid to the person for whom
he has performed such labor or furnished such materials. If several
notices of lien are filed for the same claim, as where the contractor
has filed a notice of lien, for the services of his workmen, and the
workmen have also filed notices of lien, the judgment shall provide for
but one payment of the claim which shall be paid to the parties entitled
thereto. Payment voluntarily made upon any claim filed as a lien shall
not impair or diminish the lien of any person except the person to whom
the payment was made.
S 57. Judgment may direct delivery of property in lieu of money. If
the owner has agreed to deliver bills, notes, securities or other
obligations or any other species of property, in payment of the debt
upon which the lien is based, the judgment may direct that such
substitute be delivered or deposited as the court may direct, and the
property affected by the lien cannot be sold, by virtue of such
judgment, except in default of the owner to so deliver or deposit within
the time directed by the court.
S 58. Judgment for deficiency. If upon the sale of the property under
judgment in a court of record there is a deficiency of proceeds to pay
the plaintiff`s claim, judgment may be docketed for the deficiency
against any person liable therefor, who shall be adjudged to pay the
same in like manner and with like effect as in judgments for deficiency
in foreclosure cases.
S 59. Vacating of a mechanic`s lien; cancellation of bond; return of
deposit, by order of court. A mechanic`s lien notice of which has been
filed on real property or a bond given to discharge the same may be
vacated and cancelled or a deposit made to discharge a lien pursuant to
section twenty may be returned, by an order of a court of record. Before
such order shall be granted, a notice shall be served upon the lienor,
either personally or by leaving it as his last known place of residence,
with a person of suitable age, with directions to deliver it to the
lienor. Such notice shall require the lienor to commence an action to
enforce the lien, within a time specified in the notice, not less than
thirty days from the time of service, or show cause at a special term of
a court of record, or at a county court, in a county in which the
property is situated, at a time and place specified therein, why the
notice of lien filed or the bond given should not be vacated and
cancelled, or the deposit returned, as the case may be. Proof of such
service and that the lienor has not commenced the action to foreclose
such lien, as directed in the notice, shall be made by affidavit, at the
time of applying for such order.
S 60. Judgment in action to foreclose lien on account of public
improvement. If, in an action to enforce a lien on account of a public
improvement, the court finds that the lien is established, it shall
render judgment directing the state or the public corporation to pay
over to the lienors entitled thereto for work done or material furnished
for such public improvement, to the extent of the sums found due the
lienors from the contractors, so much of the funds or money which may be
due from the state or public corporation to the contractor, as will
satisfy such liens, with interest and costs, not exceeding the amount
due to the contractor. If it appears in any proceeding in which the
state is a party that a claim has been or can be filed against the state
in the court of claims, or if it is alleged upon the part of the state
that the contractor has breached the contract, then the court may render
judgment only to the extent of determining the establishment of the lien
or liens, and the amount or amounts thereof.
S 61. Judgment in action to foreclose a mechanic`s lien on property of
a railroad corporation. If the lien is for labor done or materials
furnished for a railroad corporation, upon its land, or upon or for its
track, rolling stock or the appurtenances of its railroad, the judgment
shall not direct the sale of any of the real property described in the
notice of the lien, but when in such case, a judgment is entered and
docketed with the county clerk of the county where the notice of lien is
filed, or a transcript thereof is filed and docketed in any other
county, it shall be a lien upon the real property of the railroad
corporation, against which it is obtained, to the same extent, and
enforceable in like manner as other judgments of courts of record
against such corporation.
S 62. Bringing in new parties. A lienor who has filed a notice of lien
after the commencement of an action in a court of record to foreclose or
enforce a mechanic`s lien against real property or a public improvement,
may at any time up to and including the day preceding the day on which
the trial of such action is commenced, make application upon notice to
the plaintiff or his attorney in such action, to be made a party
therein. Upon good cause shown, the court must order such lienor to be
brought in by amendment. If the application is made by any other party
in said action to make such lienor or other person a party, the court
may in its discretion direct such lienor or other person to be brought
in by like amendment. The order to be entered on such application shall
provide the time for and manner of serving the pleading of such
additional lienor or other person and shall direct that the pleadings,
papers and proceedings of the other several parties in such action,
shall be deemed amended, so as not to require the making or serving of
papers other than said order to effectuate such amendment, and shall
further provide that the allegations in the answer of such additional
lienor or other person shall, for the purposes of the action, be deemed
denied by the other parties therein. The action shall be so conducted by
the court as not to cause substantially any delay in the trial thereof.
The bringing in of such additional lienor or other person shall be
without prejudice to the proceedings had, and if the action be on the
calendar of the court, same shall retain its place on such calendar
without the necessity of serving a new note of issue and new notices of
trial.
S 63. Service of answer on state or public corporation. In an action
to foreclose a lien for a public improvement each defendant named in the
original summons shall within forty days after the service of the
complaint on him serve upon the state or public corporation, a copy of
his answer When the city of New York is a party such service shall be
made on the corporation counsel.
S 64. Award of personal judgment by court or referee. A court or
referee in any action heretofore or hereafter brought may at any time
award a money judgment in favor of any party. This shall not preclude
the rendition of other judgments in the action. Any payment made on
account of either judgment in favor of a party shall be credited on the
other judgment.
S 65. Arrears/past due support. 1. The New York state office of
temporary and disability assistance, or a local social services
district, or its authorized representative, on behalf of persons
receiving services under title six-A of article three of the social
services law, shall have a lien against real property owned by a support
obligor when such support obligor is or was under a court order to pay
child support or combined child and spousal support to a support
collection unit and such support obligor has accumulated support
arrears/past due support in an amount equal to or greater than the
amount of support due pursuant to such order for a period of four
months. Such lien shall be in an amount sufficient to satisfy the
support arrears/past due support. Such lien shall be enforceable upon
filing a notice of lien in the office of the clerk of the county in
which real property subject to any such lien is situated. In the event
the real property is located in more than one county, filing shall occur
in the office of the clerk in each county where the real property is
situated. The county clerk of each county shall accept and maintain the
notice of lien as part of a comprehensive index of liens against real
property. If a child support obligor against whom a lien is filed
subsequently acquires an interest in real property, the lien shall be
perfected and have effect upon the recording or filing of the instrument
by which such interest is obtained. The filing of notice of lien or a
release of lien may be done by electronic means and without payment of a
fee.
2. Said lien shall terminate upon payment in full of all support
arrears/past due support. The office of temporary and disability
assistance or a social services district or its authorized
representative may file a release of lien against specified property,
which action shall not of itself discharge a lien arising by operation
of law.
3. The state shall accord full faith and credit to liens which arise
in another state when such state agency, party or other entity seeking
to enforce such a lien complies with the procedural rules relating to
filing or serving liens pursuant to this section and section one hundred
eleven-u of the social services law. Such rules may not require judicial
notice or hearing prior to enforcement of such a lien.
4. For the purposes of determining whether a support obligor has
accumulated support arrears/past due support for a period of four
months, the amount of any retroactive support, other than periodic
payments of retroactive support which are past due, shall not be
included in the calculation of arrears/past due support pursuant to this
section; however, if at least four months of support arrears/past due
support have accumulated subsequent to the date of the court order, the
entire amount of any retroactive support may be collected pursuant to
the provisions of this section or as otherwise authorized by law.