New York Lien Law
ARTICLE 3-A
DEFINITION AND ENFORCEMENT OF TRUSTS
Section
70. Definition of trusts.
71. Purpose of the trust; "trust claims"; "beneficiaries."
71-a. Further trust of funds received or receivable by owner
under executory contract for the sale and improvement of
real property.
72. Diversion of trust funds.
73. Affirmative defense in action against transferee of trust
assets or to charge trustee in certain cases; "Notice of
Lending."
74. Authority of trustee in administering trust funds.
75. Deposit of funds of trust; books or records to be kept.
76. Right of beneficiaries to examine books or records and
make copies, or to receive statement.
77. Action to enforce trust.
78. Relief after judgment on obligation constituting trust
claim.
79. Liens not affected.
79-a. Misappropriation of funds of trust.
S 70. Definition of trusts. 1. The funds described in this section
received by an owner for or in connection with an improvement of real
property in this state, including a home improvement loan, or received
by a contractor under or in connection with a contract for an
improvement of real property, or home improvement, or a contract for a
public improvement in this state, or received by a subcontractor under
or in connection with a subcontract made with the contractor for such
improvement of real property including a home improvement contract or
public improvement or made with any subcontractor under any such
contract, and any right of action for any such funds due or earned or to
become due or earned, shall constitute assets of a trust for the
purposes provided in section seventy-one of this chapter.
For the purposes of this section: (a) any right to receive payment at
a future time shall be deemed a right of action therefor and an asset of
the trust even though it is contingent upon performance or upon some
other event, but the fact that the right is a trust asset does not
enlarge the right or excuse any performance or condition upon which it
depends; (b) "contract" and "subcontract" shall include any modification
of the contract or subcontract to which reference is made; and (c) funds
due or earned under a contract or subcontract shall include any funds
payable to the contractor or subcontractor in addition to the contract
price by reason of any transaction, event or circumstance in the making
or in the performance of the contract or subcontract.
2. The funds received by an owner and the rights of action with
respect thereto, for or in connection with each improvement, shall be a
separate trust and the owner shall be the trustee thereof. The funds
received by a contractor or subcontractor and the rights of action with
respect thereto, under or in connection with each contract or
subcontract, shall be a separate trust and the contractor or
subcontractor shall be the trustee thereof.
3. Every such trust shall commence at the time when any asset thereof
comes into existence, whether or not there shall be at that time any
beneficiary of the trust. The trust of which the owner is trustee shall
continue with respect to every asset of the trust until every trust
claim arising at any time during the improvement has been paid or
discharged, or until all such assets have been applied for the purposes
of the trust. The trust of which a contractor or subcontractor is
trustee shall continue with respect to every asset of the trust until
every trust claim arising at any time prior to the completion of the
contract or subcontract has been paid or discharged, or until all such
assets have been applied for the purposes of the trust. Upon termination
of the trust by payment or discharge of all the trust claims, the
beneficial interest in any remaining assets shall vest in the owner,
contractor or subcontractor, as the case may be.
4. The trusts described in this section shall arise whether or not a
covenant declaring or acknowledging the trust, as required in article
two of this chapter, has been executed.
5. The assets of the trust of which the owner is trustee are the funds
received by him and his rights of action for payment thereof
(a) under a building loan contract;
(b) under a building loan mortgage or a home improvement loan;
(c) under a mortgage recorded subsequent to the commencement of the
improvement and before the expiration of four months after completion of
the improvement;
(d) as consideration for a conveyance recorded subsequent to the
commencement of the improvement and before the expiration of four months
after the completion thereof;
(e) as consideration for, or advances secured by, an assignment of
rents due or to become due under an existing or future lease or tenancy
of the premises that are the subject of the improvement, or of any part
of such premises, if the assignment is executed subsequent to the
commencement of the improvement and before the expiration of four months
after the completion of the improvement or if it is executed before the
commencement of the improvement and an express promise to make an
improvement, or an express representation that an improvement will be
made, is contained in the assignment or given in the transaction in
which the assignment is made;
(f) as proceeds of any insurance payable because of the destruction of
the improvement or its removal by fire or other casualty, except that
the amount thereof required to reimburse the owner for premiums paid by
him out of funds other than trust funds shall not be deemed part of the
trust assets;
(g) under an executory contract for the sale of real property and the
improvement thereof by the construction of a building thereon.
6. The assets of the trust of which a contractor is trustee are the
funds received by him and his rights of action for payment thereof
(a) under the contract for the improvement of real property, or home
improvement or the public improvement;
(b) under an assignment of funds due or earned or to become due or
earned under the contract;
(c) as proceeds of any insurance payable because of destruction of the
improvement of real property including a home improvement or public
improvement or its removal by fire or other casualty, except that the
amount thereof required to reimburse the contractor for premiums paid by
him out of funds other than trust funds shall not be deemed part of the
trust assets.
7. The assets of the trust of which a subcontractor is trustee are the
funds received by him and his rights of action for payment thereof
(a) under the subcontract;
(b) under an assignment or order for the payment of moneys due or
earned or to become due or earned under the subcontract;
(c) as proceeds of any insurance payable because of the destruction of
the improvement of real property or public improvement or its removal by
fire or other casualty, except that the amount thereof required to
reimburse the subcontractor for premiums paid by him out of funds other
than trust funds shall not be deemed part of the trust assets.
8. For the purposes of this article, the term "home improvement
contract" shall have the meaning ascribed to it by section seven hundred
seventy of the general business law, and the term "home improvement
loan" shall mean any loan obtained for the purpose of financing a home
improvement. The term "home improvement" shall mean the repairing,
remodeling, altering, converting, or modernizing of, or adding to
residential property, including but not limited to the construction,
erection, replacement, or improvement of driveways, swimming pools,
siding, insulation, roofing and windows, terraces, patios, landscaping,
fences, porches, garages, solar energy systems, flooring, basements, and
other improvements of the residential property and all structures or
land adjacent to it.
S 71. Purpose of the trust; "trust claims"; "beneficiaries." 1. The
trust assets of which an owner is trustee under subdivisions five (a) to
five (f), inclusive, of section seventy of this chapter shall be held
and applied for payment of the cost of improvement. The trust assets of
which an owner is trustee under subdivision five (g) of section seventy
of this chapter shall be held and applied for payment of the cost of
improvement and, in addition, for the purposes of the further trust
provided in section seventy-one-a of this chapter.
2. The trust assets of which a contractor or subcontractor is trustee
shall be held and applied for the following expenditures arising out of
the improvement of real property, including home improvement or public
improvement and incurred in the performance of his contract or
subcontract, as the case may be:
(a) payment of claims of subcontractors, architects, engineers,
surveyors, laborers and materialmen;
(b) payment of the amount of taxes based on payrolls including such
persons and withheld or required to be withheld and taxes based on the
purchase price or value of materials or equipment required to be
installed or furnished in connection with the performance of the
improvement;
(c) payment of taxes and unemployment insurance and other
contributions due by reason of the employment out of which such claims
arose;
(d) payment of any benefits or wage supplements, or the amounts
necessary to provide such benefits or furnish such supplements, to the
extent that the trustee, as employer, is obligated to pay or provide
such benefits or furnish such supplements by any agreement to which he
is a party;
(e) payment of premiums on a surety bond or bonds filed and premiums
on insurance accrued during the making of the improvement, including
home improvement, or public improvement;
(f) payment to which the owner is entitled pursuant to the provisions
of section seventy-one-a of this chapter.
3. (a) With respect to the trust of which an owner is trustee, "trust
claims" means claims of contractors, subcontractors, architects,
engineers, surveyors, laborers and materialmen arising out of the
improvement, for which the owner is obligated, and also means any
obligation of the owner incurred in connection with the improvement for
a payment or expenditure defined as cost of improvement.
(b) With respect to the trusts of which a contractor or subcontractor
is trustee, "trust claims" means claims arising at any time for payments
for which the trustee is authorized to use trust funds as provided in
subdivision two of this section.
(c) No claim acquired by the trustee by assignment or otherwise shall
be a trust claim after it has been so acquired.
4. Persons having claims for payment of amounts for which the trustee
is authorized to use trust assets as provided in this section are
beneficiaries of the trust whether or not they have filed or had the
right to file a notice of lien as provided in article two of this
chapter or shall have recovered a judgment therefor. Where an owner
becomes obligated to incur an expenditure as part of the cost of
improvement, any person to whom he is so obligated is a beneficiary.
5. For the purposes of this article, every trust claim shall be deemed
to be in existence from the time of the making of the contract or the
occurrence of the transaction out of which the claim arises and, except
as provided in section seventy-six and section seventy-seven, the rights
of each member of the class of beneficiaries accrue at the making of the
contract or the occurrence of the transaction out of which the claim
arises.
S 71-a. Further trust of funds received or receivable by owner under
executory contract for the sale and improvement of real property. 1. As
used in this section,
(a) A "contract of sale" is an executory contract for the sale of real
property and the improvement thereof by the construction of a building
thereon.
(b) "Advances" include funds received by the owner and his rights of
action for payment thereof.
2. (a) Advances made by or on behalf of a vendee of real property to
the owner under or pursuant to a contract of sale shall constitute
assets of a trust, as defined in this section, of which the owner is
trustee, notwithstanding that such advances may also be assets of a
trust defined in section seventy of this chapter.
(b) Such advances shall be held and applied by the owner for the
payment of the cost of improvement. The trust claims defined in
subdivision three (a) of section seventy-one of this chapter shall have
priority over trust claims which the vendee has under the further trust
provided in this section. Advances shall cease to be subject to the
further trust provided in this section after they have been applied by
the owner for payment of the cost of improvement, provided that no part
of the advances shall be applied or be deemed applied for payment of the
cost of improvement until all trust assets, as defined in subdivisions
five (a) to five (f), inclusive, of section seventy of this chapter,
which have been received by the owner from all other sources, have been
exhausted.
(c) Such advances, or any portion thereof remaining after application
of such advances for payment of the cost of improvement, shall continue
to be held in trust by the owner for the benefit of the vendee, until
the trust is terminated (i) by the owner`s performance of the terms of
the contract of sale, or (ii) by a default of the vendee excusing the
owner`s performance of the terms of the contract of sale, or (iii) by
release or discharge of the owner`s liability to refund such advances to
the vendee.
(d) Until the further trust is terminated as provided in this section,
such advances shall not be applied by the owner for any purpose other
than payment of the cost of improvement and satisfaction of any
liability of the owner to refund such advances, or any part thereof, to
the vendee. Upon termination of the said trust, the beneficial interest
in such advances or any portion thereof remaining in the hands of the
owner shall vest in the owner, provided that all trust claims applicable
to such advances have been paid or discharged.
(e) Any provision whereby the vendee waives the provisions of this
section, whether contained in the contract of sale or otherwise, shall
be absolutely void.
(f) Subject to the provisions of this section, the rights and remedies
which may be exercised by a holder of trust claims with respect to
assets of a trust defined in section seventy of this chapter may be
exercised, in the same manner and to the same extent, by the vendee with
respect to such advances.
(g) The enforcement of the trust provided in this section shall not be
deemed to prohibit the vendee from seeking to enforce such additional or
alternative remedies provided by law as shall afford the vendee complete
relief.
3. (a) The initial advance pursuant to a contract of sale which by its
terms provides for or is incidental to a contract providing for the
construction on the subject real property of residential condominium
unit or any structure designed solely for residential occupancy of not
more than two families living separately, on property to be purchased
shall, at the vendee`s option, be deposited within five business days
thereafter by the recipient in an interest bearing escrow account in a
bank, trust company, savings bank, state or federal savings and loan
association, located in this state. Such deposit, together with the
interest accumulated thereon, shall remain the property of the vendee
except as otherwise provided herein. The recipient shall advise the
vendee in writing of the name of the depository where the funds have
been placed within ten business days after such deposit has been made.
(b) In lieu of making the deposit of such moneys in an escrow account
as provided in paragraph (a) of this subdivision, the recipient may post
with the vendee a bond or contract of indemnity, issued by a surety
company licensed to execute such an instrument in this state,
guaranteeing the return of the moneys which otherwise would be required
to be deposited in such escrow account, in which case the recipient
shall not be required to deposit such money in an escrow account. Said
bond or contract of indemnity shall be delivered to the vendee within
ten business days after receipt of the initial advance.
(c) At any time after making the deposit of such moneys in the escrow
account, the recipient may post with the vendee a bond or contract of
indemnity issued by a surety company licensed to execute such an
instrument in this state guaranteeing the return of such moneys, in
which case the recipient shall not be required to maintain the deposit
of such moneys in such account.
(d) Such advance shall be retained in the escrow account or such bond
or contract of indemnity continued in effect until the trust is
terminated (i) by the recipient`s performance of the terms of the
contract of sale, or (ii) by default of the vendee excusing the
recipient`s performance of the terms of the contract of sale, or (iii)
by release or discharge of the recipient`s liability to refund such
advance to the vendee, or (iv) upon transfer of title of the real
property to the vendee.
(e) Every contract of sale which by its terms provides for or is
incidental to a contract providing for the construction on the subject
real property of a residential condominium unit or a structure designed
solely for the residential occupancy by not more than two families
living apart, shall contain a statement advising the vendee of the
provisions of this subdivision. Such statement shall be printed in bold
type which is at least two points larger than any other printing
contained thereon and shall read as follows:
"YOU, AS THE PURCHASER OF THIS RESIDENCE,
MAY REQUIRE THE RECIPIENT OR CONTRACTOR
TO DEPOSIT THE INITIAL ADVANCE MADE BY YOU
IN AN ESCROW ACCOUNT. IN LIEU OF SUCH
DEPOSIT, THE RECIPIENT OR CONTRACTOR
MAY POST A BOND OR CONTRACT OF INDEMNITY
WITH YOU GUARANTEEING THE RETURN OF
SUCH ADVANCE."
4. (a) Under a home improvement contract, payments received from an
owner by a home improvement contractor prior to the substantial
completion of work under the contract shall be deposited within five
business days thereafter by the recipient in an escrow account in a
bank, trust company, savings bank, or state or federal savings and loan
association, located in this state. No depository institution acting on
the instructions or otherwise dealing with a home improvement contractor
shall be obliged to inquire into the validity or propriety of any
deposits to or withdrawals from any escrow account established by the
home improvement contractor in compliance with this subdivision or to
insure that any withdrawals from such account are applied for any
specific purpose or purposes by the home improvement contractor. Such
deposit or deposits shall remain the property of such owner except as
otherwise provided herein. Unless the home improvement contract
specifies the name of the depositary where the funds will be placed, no
later than ten business days after the deposit has been made, the
recipient shall advise the owner in writing of the name of the
depositary where the funds have been placed. The recipient shall not be
required to keep in separate depositary accounts the funds of the
separate owners from whom payments have been received, provided his
books of account shall clearly show the allocation to each owner of the
funds deposited in his general or special depositary account or
accounts.
(b) In lieu of making the deposit of such payment or payments in an
escrow account as provided in paragraph (a) of this subdivision, the
recipient may post with the owner a bond or contract of indemnity,
issued by a surety company licensed to execute such an instrument in
this state, or an irrevocable letter of credit issued by a bank, trust
company, savings bank, or state or federal savings and loan institution
located in this state, guaranteeing the return of the payments, or the
proper application of the payments to the purposes of the contract,
which otherwise would be required to be deposited in such escrow
account, in which case the recipient shall not be required to deposit
such payments in an escrow account. Said bond or contract of indemnity
or irrevocable letter of credit shall be delivered to the owner within
ten business days after receipt of the payment.
(c) At any time after making the deposit of such payment or payments
in the escrow account, the recipient may post with the owner a bond or
contract of indemnity issued by a surety company licensed to execute
such an instrument in this state, or an irrevocable letter of credit
issued by a bank, trust company, savings bank, or state or federal
savings and loan institution located in this state, guaranteeing the
return or proper application of such payment to the purposes of the
contract, in which case the recipient shall not be required to maintain
the deposit of such payment in such account.
(d) Such deposit or deposits shall remain the property of the owner or
such bond or contract of indemnity or irrevocable letter of credit
continued in effect until (i) the proper payment, transfer or
application of such deposits by the contractor to the purposes of the
home improvement contract under the schedule of payments provided
therein; or (ii) the default or breach of the owner excusing the
recipient`s performance of the terms of the home improvement contract,
but only to the extent of any reasonable liquidated damage amount as
defined in section 2-718 of the uniform commercial code and set forth in
the contract, and only after seven days prior written notice to the
owner; or (iii) substantial performance of the contract.
(e) The recipient shall not withdraw deposits from the escrow account
in excess at any time of the total amount shown in the schedule of
payments in the home improvement contract. The amount of any such
progress payments shall bear a reasonable relationship to the amount of
work to be performed, materials purchased, or expenses for which the
contractor would be obligated.
(f) If the home improvement contract provides that the home
improvement contractor will be paid on a specified hourly or time basis
for work that has been performed or charges for materials that have been
supplied prior to the time that payment is due, this subdivision shall
not apply to such payments for such work or materials.
(g) Failure to place customer deposits in escrow, except as provided
herein, shall constitute a violation of this section.
S 72. Diversion of trust funds. 1. Any transaction by which any trust
asset is paid, transferred or applied for any purpose other than a
purpose of the trust as stated in subdivision one or subdivision two of
section seventy-one, before payment or discharge of all trust claims
with respect to the trust, is a diversion of trust assets, whether or
not there are trust claims in existence at the time of the transaction,
and if the diversion occurs by the voluntary act of the trustee or by
his consent such act or consent is a breach of trust.
Nothing in this article affects the rights of a holder in due course
of a negotiable instrument or of a purchaser in good faith for value and
without notice that a transfer to him is a diversion of trust assets.
2. Trust assets shall not be levied upon or subject to a restraining
notice issued pursuant to section fifty-two hundred twenty-two of the
civil practice law and rules as the individual property of the trustee.
3. In any action or proceeding in which it is sought to apply trust
assets for a purpose other than a purpose of the trust as stated in
subdivision one or subdivision two of section seventy-one
(a) it shall be the duty of the trustee, if he is a party, to defend
the trust against such application, and if he knows of the action or
proceeding but is not a party, to make application for intervention
therein for the purpose of defending the trust;
(b) any beneficiary of the trust having a trust claim may intervene in
the action or proceeding to defend the trust against such application.
S 73. Affirmative defense in action against transferee of trust assets
or to charge trustee in certain cases; "Notice of Lending."
1. In any action against a person to whom trust assets have been
transferred, to recover assets diverted from the trust or to recover
damages for the diversion, a transferee named in a "Notice of Lending"
filed as provided in subdivision three of this section shall be entitled
to show by way of defense that the transfer was made as security for or
in consideration of or in repayment of advances made to or on behalf of
the trustee in accordance with such notice of lending and that prior to
the making of such advances the transferee procured from the trustee the
written agreement of the trustee that he will receive the advances and
will hold the right to receive such advances as trust funds to be first
applied to the payment of trust claims as defined in section seventy-one
of this chapter, and that he will apply the same to such payments only,
before using any part of such advances for any other purpose. Subject to
subdivision four of this section, if such defense is established, the
transferee shall be entitled to a credit for the amount of the advances
with respect to which it is so established, to the extent that such
amount does not exceed the maximum amount specified in the notice of
lending filed as provided in subdivision three.
2. In any action in which it is sought to charge a trustee personally
with liability by reason of a diversion of trust assets, the trustee
shall be entitled to show by way of defense that the transfer
constituting the diversion was made to a transferee named in a "Notice
of Lending" filed as provided in subdivision three and that the transfer
was made as security for or in consideration of or in repayment of
advances made to him as trustee or on his behalf as trustee in
accordance with such notice of lending, and that such advances were
actually applied for a purpose of the trust as stated in subdivision one
or subdivision two of section seventy-one of this chapter. Subject to
subdivision four of this section, if such defense is established, the
trustee shall be entitled to a credit against any personal liability by
reason of such transfer, for the amount of the advances with respect to
which it is established, to the extent that such amount does not exceed
the maximum amount specified in the notice filed as provided in
subdivision three.
S 73. Affirmative defense in action against transferee of trust assets
or to charge trustee in certain cases; "Notice of Lending."
1. In any action against a person to whom trust assets have been
transferred, to recover assets diverted from the trust or to recover
damages for the diversion, a transferee named in a "Notice of Lending"
filed as provided in subdivision three of this section shall be entitled
to show by way of defense that the transfer was made as security for or
in consideration of or in repayment of advances made to or on behalf of
the trustee in accordance with such notice of lending and that prior to
the making of such advances the transferee procured from the trustee the
written agreement of the trustee that he will receive the advances and
will hold the right to receive such advances as trust funds to be first
applied to the payment of trust claims as defined in section seventy-one
of this chapter, and that he will apply the same to such payments only,
before using any part of such advances for any other purpose. Subject to
subdivision four of this section, if such defense is established, the
transferee shall be entitled to a credit for the amount of the advances
with respect to which it is so established, to the extent that such
amount does not exceed the maximum amount specified in the notice of
lending filed as provided in subdivision three.
2. In any action in which it is sought to charge a trustee personally
with liability by reason of a diversion of trust assets, the trustee
shall be entitled to show by way of defense that the transfer
constituting the diversion was made to a transferee named in a "Notice
of Lending" filed as provided in subdivision three and that the transfer
was made as security for or in consideration of or in repayment of
advances made to him as trustee or on his behalf as trustee in
accordance with such notice of lending, and that such advances were
actually applied for a purpose of the trust as stated in subdivision one
or subdivision two of section seventy-one of this chapter. Subject to
subdivision four of this section, if such defense is established, the
trustee shall be entitled to a credit against any personal liability by
reason of such transfer, for the amount of the advances with respect to
which it is established, to the extent that such amount does not exceed
the maximum amount specified in the notice filed as provided in
subdivision three.
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3. (a) If funds are advanced to or on behalf of a trustee, for the
purposes of the trust, either the trustee or the person advancing the
funds may file a "Notice of Lending" as provided in this subdivision. In
the case of advances to an owner or to a contractor or subcontractor for
one or more projects for the improvement of real property including a
home improvement, the notice shall be filed in the office of the county
clerk of each county where the real property improved or to be improved
to which the notice relates is situated. Such clerk shall enter the
facts relating to the notice in the "lien docket" or in another book
provided by him for such purpose. Each such notice shall be indexed by
the name of the trustee to whom or on whose behalf the advances are
made. In the case of advances to a contractor or subcontractor for one
or more projects involving a public improvement, the notice shall be
filed with the head of each department or bureau having charge of
construction of an improvement to which the notice relates and with the
financial officer of each public corporation or other officer or person
charged with the custody and disbursement of the corporate funds
applicable to the contract for each such public improvement.
(b) A notice filed pursuant to this section is effective for the
purposes of this section with respect to advances made on the day of
filing or subsequently, or made not more than five days before the date
of filing. The notice must contain: (1) a statement of the name and
address of the person making the advances, (2) a statement of the name
and address of the person to whom or on whose behalf they are made, and
whether he is owner, contractor or subcontractor, (3) in the case of
advances relating to one specific project for the improvement of real
property including a home improvement or one specific public
improvement, a description, sufficient for identification, of the
improvement and of the real property involved for which the advances are
made, and in the case of a notice of lending relating to several or
undetermined projects for the improvement of real property including a
home improvement or for public improvements, a statement of each county
wherein the real property is or may be situated, (4) the date of any
advance made on or before the date of filing for which the notice is
intended to be effective, (5) in the case of a notice of lending
relating to several or undetermined projects, the date the notice will
terminate, which termination date shall not be more than two years after
the date the notice is filed, and (6) the maximum balance of advances
outstanding to be permitted by the lender pursuant to the notice. If
real property is required to be specifically identified hereunder, the
identification shall be sufficient if it includes the name of the record
owner and the location of the real estate by street and number and town
or city or, if the real estate is in the city of New York, by county,
except that if the real estate is in the city of New York or counties of
Nassau or Onondaga, where the block system of recording or registering
and indexing conveyances is in use, the notice must also specify the
block in which the real estate is situated.
(c) A "Notice of Lending" may be continued in effect for advances made
beyond the stated termination date by filing within sixty days prior to
the termination date a subsequent notice entitled "Second Notice of
Lending" or "Third Notice of Lending", which identifies the prior notice
to which it relates and otherwise conforms to the requirements of
paragraph (b) of subdivision three of this section. The term "Notice of
Lending" as used in this section includes any amendments but if any
amendment increases the maximum balance of advances outstanding to be
permitted by the lender, it is effective as to the increased amount only
with respect to advances made not more than five days before the date of
filing the amended notice or thereafter.
(d) A "Notice of Assignment" meeting the requirements of subdivision
two of section fifteen of this chapter and filed pursuant to subdivision
one of said section shall be deemed for all purposes a "Notice of
Lending" complying with the requirements of this section.
4. Notwithstanding that the transferee, or the trustee, establishes a
defense as provided in subdivision one or subdivision two of this
section, he shall be allowed no credit by reason of such defense if it
is shown that a written demand by a trust beneficiary for a verified
statement of the amount of advances actually made to the trustee was
served personally or by registered or certified mail on the transferee,
or the trustee as the case may be, and that he failed to comply
therewith within ten days after receipt of the demand, provided, that if
either the transferee or the trustee complies with a demand so served on
him, such compliance shall be sufficient as to the other.
5. Notwithstanding any provision of this chapter or of any other law
to the contrary, moneys received pursuant to a notice of lending by an
owner, contractor or subcontractor shall be deemed to be trust assets.
S 74. Authority of trustee in administering trust funds. 1. Subject to
subdivisions two and three of this section, the trustee is authorized to
determine the order and manner of payment of any trust claims and to
apply any trust asset to any purpose of the trust.
2. The authority of the trustee provided in this section shall
terminate with respect to any trust assets as to which an order for
distribution is made as provided in section seventy-seven and before the
making of an order for distribution may be terminated or limited by
order of the court pursuant to subdivision three of section
seventy-seven.
3. This section does not limit the effect of any proceeding or order
therein by which jurisdiction of the trust assets, or any of them, is
vested in a court or by which a particular application of any asset or
of all trust assets is enforced or directed.
S 75. Deposit of funds of trust; books or records to be kept. 1. If
the trustee deposits trust funds in a bank or other depositary they
shall be deposited in his name.
The trustee shall not be required to keep in separate bank accounts or
deposits the funds of the separate trusts of which he may be trustee
under this article, provided his books of account shall clearly show the
allocation to each trust of the funds deposited in his general or
special bank account or accounts.
2. Every trustee shall keep books or records with respect to each
trust of which he is trustee and, if funds of separate trusts are
deposited in the same bank account, shall keep a record of such account
showing the allocation to each trust of the deposits therein and
withdrawals therefrom.
3. The books or records with respect to each trust shall contain the
following entries:
A. Trust assets receivable. (1) The name and address of each person
from whom the trustee has a right to receive funds constituting assets
of the trust, or will have a right to receive such funds upon or in the
course of performance of a contract or subcontract or upon some other
condition, with a statement sufficient to identify the contract or other
transaction by reason of which such moneys will become payable; (2) the
amount of each payment or advance from each such person that has become
due or earned or otherwise payable; and (3) the date upon which it
became due, earned or payable.
B. Trust accounts payable. (1) The name and address of each person to
whom the trustee has incurred an obligation constituting a trust claim,
whether or not such claim is then due, with a statement sufficient to
identify the contract or transaction out of which the trust claim
arises; (2) the amount of each trust claim that has become due, earned
or otherwise payable; and (3) the date upon which it became due, earned
or payable.
C. Trust funds received. (1) The name and address of each person from
whom funds constituting trust assets have been received in the form of
cash, check or other instrument for the payment of money, bank credit or
drawing account, or similar form available for immediate application to
trust purposes, including any instrument in form payable to a trust
beneficiary and any moneys paid directly to a trust beneficiary on
behalf of the trustee, with a description of the form in which the funds
were received; (2) the date on which each payment or remittance from
such person was received; (3) the amount received on such date; and (4)
if such funds are deposited in a bank or other depositary, the name and
address of such bank or depositary.
D. Trust payments made with trust assets. (1) The name and address of
each person to whom a payment for the purposes of the trust has been
made, with moneys or other assets constituting trust assets, including
payments made directly to such person on behalf of the trustee by a
person from whom trust assets are receivable; (2) the date when and
place where each payment was made; (3) the amount paid on each of such
dates and a statement whether the payment was made in cash or by check
and the manner of payment if made by some other person on behalf of the
trustee; (4) with respect to each such payment a statement of the nature
of the trust claim or if the owner is trustee the nature of the
expenditure other than payment of a trust claim, for which the payment
is made, sufficient in any case to identify the payment as a payment for
a trust purpose and to show whether it is for labor, materials, taxes,
insurance, performance under contract or subcontract, interest charges
on mortgages, or other particular trust claim or item of cost of
improvement; (5) if any such payment was made pursuant to contract
between the trustee and the recipient of the payment, the date when such
contract was made, whether it was oral or in writing, and the agreed
price named therein; (6) if any such payment upon a contract or
subcontract relates to a particular item or items of the improvement, or
if any such payment for materials or services relates to materials
furnished, or services, other than daily or weekly labor, rendered for
or upon a particular item or items of the improvement, a description of
such item or items; (7) if any such payment was made with funds received
under an assignment of funds due or earned or to become due or earned
under the contract or subcontract, a statement of the amount of such
funds so used together with the name and address of the assignee and the
date of the assignment.
E. Transfers in repayment of or to secure advances made pursuant to a
"Notice of Lending. " If the trustee has assigned, paid or otherwise
transferred any trust asset in consideration of or as security for or in
repayment of advances applied or to be applied for a purpose or purposes
of the trust, (1) the name and address of the person to whom the asset
was so transferred; (2) the date of the transfer; (3) a description of
the asset transferred; (4) the amount thereof; (5) the amount of the
consideration therefor or of the advances secured or repaid thereby; (6)
the date or dates when such consideration was paid or such advances were
made and the manner in which the payment or advance was made.
4. Failure of the trustee to keep the books or records required by
this section shall be presumptive evidence that the trustee has applied
or consented to the application of trust funds actually received by him
as money or an instrument for the payment of money for purposes other
than a purpose of the trust as specified in section seventy-one of this
chapter.
S 76. Right of beneficiaries to examine books or records and make
copies, or to receive statement. 1. Any beneficiary of the trust holding
a trust claim shall be entitled, upon request, after the expiration of
thirty days from the date his trust claim became payable, and thereafter
not oftener than once in each month, (a) to examine the books or records
of the trustee with respect to the trust, and to make copies of any part
or parts thereof relating to the trust; or (b) at the beneficiary`s
option to receive a verified statement setting forth the entries with
respect to the trust contained in such books or records.
2. Request for such examination and to make such copies, or for such
verified statement, shall be made in writing served personally or by
registered or certified mail. The request shall contain a statement of
the name and address of the beneficiary, a description of the
improvement of real property, or home improvement, or the public
improvement sufficient to identify it and to identify the trust, and a
statement of the nature of the trust claim sufficient to identify it,
the amount then due and unpaid, and the due date thereof.
3. Unless otherwise agreed, the examination and copying shall be had
within ten days after service of the request, at a place within the
county in which the improvement, or home improvement, or public
improvement is situated, designated by the trustee within such ten days,
and at a time during usual business hours, so designated by the trustee.
The examination and copying may be made by the beneficiary or by his
agent duly authorized in writing.
4. Within ten days after service of a request for a verified
statement, the trustee shall serve upon the beneficiary named in the
request a statement, subscribed by the trustee or an officer thereof and
verified on his own knowledge, setting forth the entries with respect to
the trust contained in the books or records kept by the trustee pursuant
to section seventy-five and the names and addresses of the person or
persons who, on behalf of or as officer, director or agent of the
trustee, made or consented to the making of the payments shown in such
statement.
5. A trustee to whom a request is made for examination of books or
records and for copying therefrom or for a verified statement of entries
in books or records may apply to any court having jurisdiction of an
action to enforce the trust, to vacate such request on the ground that
the person making the request is not entitled to such examination and
copying or to receive such verified statement. If a trustee on whom a
request for examination and copying or for a verified statement is
served as provided in this section shall refuse to comply therewith or
shall fail to comply therewith within ten days, or shall apply to the
court for an order to vacate the request, the beneficiary may apply to
such court for an order directing that the trustee comply with the
request. Such application may be made in either case on three days`
notice and may be determined summarily upon affidavits of the parties.
6. This section does not limit the power of the court in an action
pursuant to section seventy-seven of this chapter or in any other action
or proceeding affecting trust assets or involving trust claims or the
administration of the trust, to give directions with respect to
production or examination of any books or records of the trustee.
S 77. Action to enforce trust. 1. A trust arising under this article
may be enforced by the holder of any trust claim, including any person
subrogated to the right of a beneficiary of the trust holding a trust
claim, in a representative action brought for the benefit of all
beneficiaries of the trust. An action to enforce the trust may also be
maintained by the trustee. In any such action, except as otherwise
provided in this article, the practice, pleadings, forms and procedure
shall conform as nearly as may be to the practice, pleadings, forms and
procedure in a class action as provided in article nine of the civil
practice law and rules; provided, however, that in determining whether
the prerequisites of a class action have been satisfied, the provisions
of paragraph one of subdivision (a) of section nine hundred one of such
law and rules may be waived at the discretion of the court.
2. Such action may be maintained at any time during the improvement of
real property, or home improvement, or public improvement and successive
actions may be maintained from time to time during the improvement
provided no other such action is pending at the time of the commencement
thereof. No such action shall be maintainable if commenced more than one
year after the completion of such improvement or, in the case of
subcontractors or materialmen, after the expiration of one year from the
date on which final payment under the claimant`s contract became due,
whichever is later, except an action by the trustee for final settlement
of his accounts and for his discharge.
3. (a) The relief granted in any such action may include any or all of
the following:
* (i) Relief to compel an interim or final accounting by the trustee;
to identify and recover trust assets in the hands of any person together
with interest accrued thereon from the time of the diversion. Interest
shall be computed at the rate equal to the underpayment rate set by the
commissioner of taxation and finance pursuant to subsection (e) of
section one thousand ninety-six of the tax law, minus two percentage
points; to set aside as a diversion any unauthorized payment, assignment
or other transfer, whether voluntary or involuntary; to enjoin a
diversion; to recover damages for breach of trust or participation
therein;
* NB Applies to interest chargeable on or after April 1, 2003
(ii) Enforcement on behalf of the trust of any right of action
constituting a trust asset;
(iii) Determination of the existence and amount of any trust asset or
of any trust claim;
(iv) An order terminating or limiting the authority of the trustee in
the application of trust assets or of any trust asset, or directing the
time and manner of application of a trust asset or part thereof;
(v) An order requiring the trustee to give security to ensure the
proper distribution of the trust assets, either during the pendency of
the action or thereafter, or to furnish assurance therefor in any other
manner, if it appears that there is danger that such assets or asset
will be dissipated before judgment or diverted from trust purposes;
(vi) An order for distribution of any trust assets available for
distribution, either with respect to the entire trust or with respect to
particular assets of the trust, or for retention of particular assets
for future distribution. Where the holder of any trust assets is a
trustee or a transferee who received the assets with the knowledge that
they were trust funds, an order for distribution and retention for
future distribution of any trust assets shall include the amount of
diverted funds plus interest from the time of the diversion to the date
of such order;
(vii) Settlement of the interim or final account of the trustee;
(viii) Final discharge of the trustee at the termination of the trust,
or discharge of the trustee with respect to the application of specific
trust assets;
(ix) Such other and further relief as to the court may seem necessary
and proper;
(x) Any provisional or ancillary relief incident to any of such
relief.
(b) Any relief pursuant to subparagraphs (i), (ii), (iii), (iv), (v),
(ix), or (x) of paragraph (a) shall be deemed to be for the benefit of
the entire class of trust beneficiaries, including persons who may
become trust beneficiaries at any time before the termination of the
trust. Except as provided in subdivision four of this section, relief
pursuant to subparagraph (vi) shall also be deemed to be for the benefit
of such entire class, but unless the court shall otherwise direct, only
those persons shall be entitled to share in any distribution of the
trust assets who are trust beneficiaries at the time of entry of the
judgment under which distribution is to be made and who have appeared in
the action or filed their claims in such manner and within such time as
the court shall direct, and whose claims are due and payable at the date
for distribution as set by the order of the court and either are
undisputed by the trustee or have been determined in the action.
4. If an action to enforce a trust of which the owner is trustee is
commenced before the completion or abandonment of the improvement of
real property, or home improvement, or if an action to enforce a trust
of which a contractor or subcontractor is trustee is commenced before
the completion or abandonment of the performance by the trustee under
the contract or subcontract, the judgment therein may provide for
distribution of the assets then available for distribution among trust
beneficiaries whose claims are then payable, and who have appeared in
the action or who file their claims within such time as the court shall
direct, and the judgment shall so provide unless the court shall
determine that in the circumstances equity requires that distribution be
deferred to await maturity of other trust claims.
5. If the action to enforce a trust of which a contractor or
subcontractor is trustee is brought after the completion or abandonment
of the performance of the contract or subcontract but before the
completion of the improvement the court may direct that the action be
continued to await events by reason of which additional trust assets may
become available.
6. For the purposes of any distribution of trust assets, the court may
direct that trust claims shown upon a schedule or schedules filed by the
trustee shall be deemed to have been filed in the action.
7. An action brought under this article shall not be compromised or
discontinued nor dismissed by consent, by default or for failure to
prosecute, except with the approval of the court. On any application for
such approval notice shall be given in such manner as the court shall
direct.
8. Subject to subdivisions three and four of this section, in any
distribution of trust assets pursuant to order or judgment in an action
to enforce a trust, the following classes of trust claims shall have
preference, in the order named: (a) trust claims for taxes and for
unemployment insurance and other contributions, due by reason of
employments, and for amounts of taxes withheld or required to be
withheld; (b) trust claims of laborers for daily or weekly wages; (c)
trust claims for benefits and wage supplements; (d) claims for any
amounts of wages of laborers for daily or weekly wages (other than
claims for amounts of taxes deducted and withheld, constituting trust
claims for such amounts) actually deducted from payments thereof,
pursuant to law or agreement, for remittance to any person on behalf of
the laborer or in satisfaction of his obligation, to the extent that
such person is entitled to assert, as a trust claim, the claim the
laborer would otherwise have for such amount.
Except as provided in this subdivision, trust claims entitled to share
in any distribution of trust assets pursuant to order of the court shall
share pro rata.
S 78. Relief after judgment on obligation constituting trust claim. If
a trust beneficiary shall recover judgment against the trustee upon the
obligation constituting the trust claim: (except in the enforcement of a
lien as provided in articles two and three of this chapter)
(a) execution upon the judgment shall not be levied upon any trust
asset;
(b) to the extent of trust assets affected by proceedings to enforce
the judgment, the proceedings shall be deemed to be for the benefit of
all trust beneficiaries who would, at the time the proceeding is
instituted, be entitled to maintain an action to enforce the trust, and
the provisions of section seventy-seven of this chapter shall apply in
any such proceedings.
S 79. Liens not affected. Nothing in this article shall prevent the
enforcement of any lien as provided in articles two and three of this
chapter and neither such lien nor any satisfaction obtained thereby,
shall be deemed a diversion of trust assets or an unauthorized
preference. For the purposes of determining the share of any trust
beneficiary upon any distribution in an action to enforce the trust, the
trust claim of a trust beneficiary shall not be reduced by reason of any
lien to which he is entitled or by reason of any rights under any bond
to which he is entitled by reason of his lien.
S 79-a. Misappropriation of funds of trust. 1. Any trustee of a trust
arising under this article, and any officer, director or agent of such
trustee, who applies or consents to the application of trust funds
received by the trustee as money or an instrument for the payment of
money for any purpose other than the trust purposes of that trust, as
defined in section seventy-one, is guilty of larceny and punishable as
provided in the penal law if
(a) such funds were received by the trustee as owner, as the term
"owner" is used in article three-a of this chapter, and they were so
applied prior to the payment of all trust claims as defined in such
article three-a, arising at any time; or
(b) such funds were received by the trustee as contractor or
subcontractor, as such terms are used in article three-a of this
chapter, and the trustee fails to pay, within thirty-one days of the
time it is due, any trust claim arising at any time; provided, however,
that if the trustee who received such funds as contractor or
sub-contractor disputes in good faith the existence, validity or amount
of a trust claim or disputes that it is due, the application of trust
funds for a purpose other than a trust purpose, or the consent to such
application, shall not be deemed larceny by reason of failure to pay the
disputed claim within thirty-one days of the date when it is due if the
trustee pays such claim within thirty-one days after the final
determination of such dispute.
2. Notwithstanding subdivision one of this section, if the application
of trust funds for a purpose other than the trust purposes of the trust
is a repayment to another person of advances made by such other person
to the trustee or on his behalf as trustee and the advances so repaid
were actually applied for the purposes of the trust as stated in section
seventy-one, or if the trustee has made advances of his personal funds
for trust purposes and the amount of trust funds applied for a purpose
other than the trust purposes of the trust does not exceed the amount of
advances of personal funds of the trustee actually applied for the
purposes of the trust, such application or consent thereto shall be
deemed justifiable and the trustee, or officer, director or agent of the
trustee, shall not be deemed guilty of larceny by reason of such
application or by reason of his consent thereto.
3. Failure of the trustee to keep the books or records required by
section seventy-five shall be presumptive evidence that the trustee has
applied or consented to the application of trust funds received by him
as money or an instrument for the payment of money for purposes other
than a purpose of the trust as stated in section seventy-one.
4. Notwithstanding any other provision of law, no act of the trustee
in relation to the assets of the trust shall, by reason of any express
covenant as provided in section thirteen or section twenty-five of this
chapter, be deemed larceny in a case in which it is not declared by
subdivision one of this section to be larceny or in a case in which the
act is deemed justifiable as provided in subdivision two of this
section.