Home>Levelset Community>Legal Help>Hi, I am a draftsperson did worked for an architect on a project as a freelancer. He didn’t pay and promised to pay after getting the c.o. The owner start residing since April 2018. The last minor job was done at the single family house was on september 2018. I did work on the project from 2016 January to 2016 September. Can i get a mechanics lien? Thanks

Hi, I am a draftsperson did worked for an architect on a project as a freelancer. He didn’t pay and promised to pay after getting the c.o. The owner start residing since April 2018. The last minor job was done at the single family house was on september 2018. I did work on the project from 2016 January to 2016 September. Can i get a mechanics lien? Thanks

New YorkRecovery Options Right to Lien

1 reply

Nov 21, 2018

I'm sorry to hear about that. There are a few different potential issues to consider here, so let's break them down. First, let's look at the timeframe for filing a New York lien, then look at to whom lien rights are available in New York, and finally, potential options for recovery. First, in New York, the deadline to file a mechanics lien will vary depending on the project. Generally, mechanics liens may be filed at any time during the project, but liens must typically be field within 8 months of one of the following dates: (1) the completion of the contract, (2) the final furnishing of labor and/or materials, and (3) the final performance of of the work. When the project is a single-family residence, this timeframe is shortened to 4 months from the above dates. Regarding who may file a lien, as a general matter, mechanics lien rights are typically reserved for those performing construction work for an improvement. Granted, a number of states extend lien rights to architects, engineers, and other design professionals. While New York may not explicitly grant lien rights to these parties, lien rights may be available. Under § 3 of the New York mechanics lien statute, "A contractor, subcontractor, laborer, materialman...who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, or of his agent, contractor or subcontractor..." will have the right to lien in New York. Under § 2(9) and (10) of the New York Lien Statute, a "contractor" refers to "a person who enters into a contract with the owner of real property for the improvement thereof" and a "subcontractor" refers to "a person who enters into a contract with a contractor and/or with a subcontractor for the improvement of such real property..." Further, section § 2(4) defines an improvement to include, among other things, "...drawing by any architect or engineer or surveyor, of any plans or specifications or survey, which are prepared for or used in connection with such improvement..." Based on the above, the argument could be made that an architect providing work to the owner or some other party on the project could be considered a "contractor" or "subcontractor" providing work for the "improvement" of property. Further, a party hired by that party could potentially be considered a "subcontractor" for that work, thus giving rise to lien rights. At the same time, that could certainly be seen as veering a little to far from the basic purpose of lien rights, and a lien filed for such work could be deemed invalid. Regardless of the availability of a mechanics lien, there are always other potential options available for recovery. For one, sending a Notice of Intent to Lien can be effective to compel payment - even where a valid lien might not be possible. A Notice of Intent to Lien acts as a warning - it states that if payment isn't made soon, a mechanics lien will be filed on the project. When a Notice of Intent is sent to the nonpaying customer as well as the contractor and owner of the project, often, the threat will put pressure on the nonpaying party to resolve the dispute and pay what is owed. Further, sending a demand letter threatening specific legal action (such as breach of contract, unjust enrichment, or potentially a claim under the New York prompt payment laws) against the nonpaying customer can be effective - especially when sent via an attorney. Lastly, filing a claim in small claims court or initiating traditional litigation can lead to payment, but both are risky options, and litigation can be particularly time consuming and expensive. Small claims court is cheaper and more efficient, but claims are limited to only a few thousand dollars, and small claims court is often considered a very risky method of recovery. You can learn more about New York small claims court here: A GUIDE TO SMALL CLAIMS & COMMERCIAL SMALL CLAIMS.

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