How do “I” get the Lien dropped and sue Him without Him “declaring Bancrupcy?”

8 months ago

I had to fire the Contractor for several reasons. First, He did not fulfill the contract by the date signed by both of us. Second, he extended the work into 9 month’s when it was supposed to be done in 3 months. I was paying Him according to work being done. Third, I wound up firing Him for not getting the work completed. By Code Enforcement pictures, all of the work He and his few workers did was done incorrectly and hazardously. One month after I fired Him He put a Mechanics Lien on the House. He took me to Court, now, a year later to get the Mechanics Lien Extended. He won. Now there is Threat in the air not knowing what He is going to do next. Thank you for any or all Help you can give me, sincerely and panicking Sharon M.L.

Senior Legal Associate Levelset
437 reviews

Challenging a New York mechanics lien can be an uphill battle in many respects. But, when fighting a mechanics lien, that generally means turning to litigation if a New York owner can’t convince the claimant to stand down and remove their claim.

Two of the key ways an owner can fend off a New York mechanics lien filing are through § 39 of the New York mechanics lien statute (showing the lien is willfully exaggerated), or via § 59 (shortening the timeframe for filing a lien).

If an owner can show that the claimant has clearly filed a mechanics lien for an amount exceeding what they’re actually owed, then challenging a lien via § 39 might be a fruitful option. However, to avoid litigating the substance of the claim, itself, challenging the lien via § 59 might be more useful.

Challenging a New York mechanics lien via § 59 of the lien statute

The following article from Vincent Pallaci provides great insight: Lien Law Section 59 Demands.

Under § 59, a property owner can serve a notice upon the lien claimant demanding that they commence an action to enforce the lien before a certain date specified in the notice (but at least 30 days after the notice is given). And, if the lien claimant doesn’t at least show why their lien shouldn’t be vacated during that timeframe, then the claim will be vacated and canceled.

So, the notice essentially forces a claimant to take some action regarding their lien claim beyond simply arguing the lien should be extended. Granted, if a claimant has already been willing to go to court once, they may well be willing to do it again to show their claim has merit.

An owner can bring suit against their contractor for contract or defect claims

Keep in mind that if a contractor has failed to uphold their contract, or if they have performed defective work, an owner may have their own causes of action they can bring against the contractor. So, pursuing those claims could be worthwhile – particularly if an owner and a claimant will already be going to court over the lien’s validity in the first place.

Now, if that contractor goes bankrupt, then an owner might not have much to go after in a lawsuit. Though, at the same time, a bankrupt contractor might not pose all that much of a legal threat if they’ll be crippled by a bankruptcy filing.

When challenging a New York mechanics lien, an attorney is necessary

With all of the above being said, it would likely be unwise to proceed with challenging a lien or defending against one without the help of an attorney in New York. They’ll be able to provide more clarity about how to proceed and what options might be most viable. When a New York lien gets filed, it’s likely time to consult a New York construction attorney, like one of these New York Construction Payment Experts.

Finally, this resource might be valuable too: A Mechanics Lien Was Filed on My Property – What Do I Do Now?

Disclaimer: The information presented here is not legal advice and should not be construed as such. Rather, this content is provided for informational purposes. Do not act on this information as if it is advice. Further, this post does not create any attorney-client relationship. If you do need legal advice, seek the help of a local attorney.
Your answer or comment:
Are you a Registered Expert?
You are not logged in and will be posting
anonymously. Log in Now
Get answers from construction attorneys and payment experts
120 Character Limit