A mechanics lien is one of the most effective ways to ensure you get paid on a construction project in New York – or in any state, for that matter. But the right to file a lien claim is only available if you meet the filing and enforcement deadlines. Once you file a mechanics lien, the State of New York gives you one year to enforce it. If you miss the deadline, your lien expires. But what if you’re not quite ready to foreclose? Maybe you’re still negotiating payment with the property owner. Can you extend a New York mechanics lien claim?
Extending a New York mechanics lien
Filing a New York mechanics lien is usually enough to get payment from the property owner without the need to foreclose. However, once in a while it’s necessary to enforce your lien in court – but you don’t have forever to decide if you want to pull the trigger. New York’s deadline to enforce a mechanics lien is one year after filing the lien claim. Failure to take action within that time period will cause the lien to expire. If your lien expires, it will no longer be enforceable. But in some cases, you might need some more time to make the decision to litigate.
So it begs the question, can a contractor or supplier extend a mechanics lien claim in New York? The short answer is yes.
New York State is one of the few that allows for the extension of the lien foreclosure action deadline for a mechanics lien. The rules for extending a claim on private improvements can be found in New York Lien Law §17: Duration of Lien. The process – and requirements to do so – differ depending on the type of project. There is also a procedure for extending a public improvement lien provided under NY Lien Law §18. Let’s break down each of these.
Private project lien extensions
The provisions covering the extension of private mechanics lien claims under §17 are as follows:
No lien specified in the article shall be a lien for longer than one year after the notice of lien was filed, unless… an extension to such lien… is filed… within one year from the filing of the original notice of lien, continuing such lien shall be redocketed as of the date of filing such extension… No lien shall be continued by such extension for more than one year from the filing thereof.
This applies to all private construction mechanics liens, with one exception. A lien filed on a single-family dwelling can only be extended under different circumstances discussed below.
Extension of Mechanics Lien form
The document to be filed is referred to as a NY Extension of Mechanics Lien Form. This should be in the proper format and must include the following information:
- Claimant’s information
- Owner’s information
- Property description
- Amount of the lien claim
- Date the original lien was filed
- An attached copy of the recorded lien
- An attached affidavit of service
Serving notice of the lien extension
Before filing the extension of lien, the lienor should send a copy of the extension form to the property owner, general contractor, and any other party up the contracting chain (i.e. hiring party and up). This should be served either personally or sent by certified mail. Once sent, the claimant should fill out an Affidavit of Service stating when and how the notice of extension was served and on whom. This affidavit should be notarized and included in your filing.
Filing a lien extension
A New York private mechanics lien can be extended if an extension is filed in the county clerk’s office where the lien was filed within the enforcement deadline (one year from the lien). Once recorded, the validity of the lien will be extended for one year.
A second extension may be possible, but only through a court order granting the extension. The motion should be filed before the extended deadline passes to be valid, even if the deadline passes before the court considers the motion.
The claimant will have to show good cause to extend the deadline another year. Under no circumstances will a NY mechanics lien be allowed to extend beyond two years.
Single-family dwelling lien extensions
Unlike typical private mechanics lien claims, a lien filed on a single-family dwelling can only be achieved by a court order. The relevant provisions of §17 are as follows:
“A lien on real property improved or to be improved with a single-family dwelling may only be extended by an order of a court of record, or a judge or justice thereof. No lien shall be continued by court order for more than one year from the granting thereof, but a new order and entry may be made in each of two successive years.”
The statute itself isn’t too helpful regarding the process. However, this will entail filing a motion to the court for the granting of an extension. A claimant should, at the very least, file the motion before the 1 year enforcement period expires. Also, like extending general private mechanics liens, this can only be done twice.
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Public improvement lien extensions
The state of New York also provides the ability to extend a public improvement mechanics lien also. The provisions covering these types of extensions under §18 state:
“If the lien is done labor done or materials furnished for a public improvement, it shall not continue for a longer period than one year from the time of filing the notice of such lien… unless an extension to such lien is filed with the comptroller of the state or the financial officer of the public corporation with whom the notice of such lien was filed within one year from the filing of the original notice of lien, continuing such lien and such lien shall be redocketed as of the date of filing such extension.”
Extension of Public Improvement Liens form
The information required to be included in the extension form is the same as a private lien extension. This should include:
- Claimant’s information
- Owner’s information
- Hiring party’s information (if applicable)
- Property description
- Amount of the lien claim
- Date the original lien was filed
- An attached copy of the recorded lien
Serving notice of extension
The process of extending a public improvement lien is a relatively simple process. The key difference is that the document isn’t filed with the county recorder. Rather, it needs to be served on a few different parties:
- The officer in charge of disbursement of funds for the public job;
- The department in charge of the improvement;
- The prime contractor; &
- The hiring party (if applicable).
This should be sent by certified mail in order to be valid. Once sent, the deadline to enforce the lien claim will be extended for one year. Also, like private lien extensions, this can only be done once by the claimant. To extend the deadline for an additional year after that, a court order will be required. Again, New York will not extend a mechanics lien longer than two years from when the original lien was filed.