Page 36 - State Law Summary of Mechanic's Lien Law

New York NY

What is the statutory authority? What is the period of enforcement of a filed mechanic’s lien?
New York Lien Law §§ 3 to 39-c, Article 2. A mechanic’s lien is effective for 1 year from date of filing, as provided under
N.Y. Lien Law § 17, unless an action is commenced during that period and a
What is the Attachment Date of the Mechanic’s Lien? notice of pendency is filed, or an extension to the lien is filed (except for single
A contractor, subcontractor, laborer, materialman, landscape gardener, nursery- family dwelling) within the period.
man or person or corporation who performs labor or furnishes materials for the
improvement of real property with the consent or at the request of the owner, or Is there a procedure to bond over the mechanic’s lien(s)?
of their agent, contractor or subcontractor has a lien for such labor, or materials Yes, a mechanic’s lien can be discharged by filing a surety or fidelity bond with
upon the real property improved or to be improved and upon such improvement, the court by filing an undertaking of two or more sureties or notice to lienor or
from the time of the filing a notice of such lien. The filed lien perfects an inchoate paying into court. Only 1 bond is required from 1 surety for N.Y. Lien Law 19(a).
lien from the time the work was done. N.Y. Lien Law § 3.
Are the ALTA 32/33 Series Endorsements available for the Loan Policy?
What constitutes visible commencement of construction? No.
There is no visible commencement rule in New York, but the inchoate lien priority
may relate back to said commencement.

What is the priority of the insured construction mortgage/
deed of trust?
A building loan mortgage takes priority over mechanic’s liens if Section 22 of the
Lien Law is followed, including:
• Recording a building loan mortgage that contains a statement in
substantially the following form: “subject to the trust fund provisions of
section thirteen of the lien law,” as required by Section 13 of the New York
Lien Law.
• Filing the building loan contract in the County Clerk’s Office in the county
where the real property is located.
• Note, however, any modification of a building loan contract must be filed
within ten days after the execution of a modification along with an updated
Section 22 affidavit (noted below). Otherwise, the building loan mortgage
loses its priority against later filed mechanic’s liens.
• Filing an affidavit (called a Section 22 affidavit) that states, among other
things, the net sum of the building loan proceeds available to cover the costs
of improvement. The Section 22 affidavit is typically attached to the
building loan contract.

When the recorded building loan mortgage includes a lien law clause and complies
with the Lien Law, any mechanic’s lien remains subordinate to the building loan
mortgage for advances made before a notice of lien is filed.
For more information, see N.Y. Lien Law §§ 13 and 22.

If priority of the insured mortgage/deed of trust is lost, is there a
statutory procedure to regain priority?
No.

When does a mechanic’s lien have to be filed for claimant to maintain
lien rights?
N.Y. Lien Law § 10 provides that the notice of lien may be filed at any time during the
progress of the work and/or the furnishing of materials or within 8 months after
the completion of the contract, final performance of the work (4 months for single
family dwelling). Under the Lien Retainage Amendment a subcontractor may file a
Notice of Lien for retainage money due within 90 days after the retainage was due
to be released, even if said period is after the 8 month limitation period.

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