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How does one determine the "last date services are furnished" (and therefore the lien deadline)

New YorkLien DeadlinesRight to Lien

We are a fabricator of "specially fabricated items", which as I understand, means in NY state that we can file a lien on a property for services performed offsite in our shop. In this instance, building a custom sign for a commercial renovation project, in addition to other custom metalwork. During production the GC on the project sent an email stating that the work had been halted by the client, and the project may not move forward. We stopped fabricating at that time. However work effectively continued on this project for another several weeks while we moved and stored the metalwork pieces which were in progress; engaged in administrative work and went to meetings with the GC to negotiate the amount that would be paid on the uncompleted work. So is the "last date services are furnished" the date we received the email advising work was being halted? Or the day we finished wrapping the unfinished pieces and put them in storage? Or the day these items were eventually disposed of due to non-payment of an agreed on settlement amount? Finally, can we file a lien on specially fabricated pieces (metalwork) that was not yet in production on the shop floor at the time of the work being halted, but had received extensive drafting work, complete with shop drawings submitted to the designers for review. Thank you!

1 reply

Aug 2, 2018
First, as to whether or not a lien may be filed for specialty materials fabrication which has not actually been delivered, § 3 of the New York lien statute is pretty clear: "...materials actually manufactured for but not delivered to the real property, shall also be deemed to be materials furnished." Of course, "materials furnished" will give rise to lien rights. As for the exact date from which the lien deadline will run, § 10 of the lien statute creates the deadline for filing as "...within eight months after the completion of the contract, or the final performance of the work, or the final furnishing of the materials, dating from the last item of work performed or materials furnished..." Generally speaking, a last date of furnishing will typically refer to the last date where work was actually provided, pursuant to the claimant's contract. In New York, as quoted above, a material furnishers' deadline will run from "the final furnishing of the materials..." Because "materials furnished" is defined under § 3 to include "materials actually manufactured for but not delivered" - it might be wise to base a lien claim deadline on the last date when the manufacturing of materials occurred. Regarding materials that had not yet gone into fabrication - ultimately, whether or not to include those amounts will be up to a claimant. However, the New York lien statute does not appear to explicitly provide for drafting or planning prior to fabrication of materials - so including those amounts could be risky. Of course, that's not to say those amounts are unrecoverable - mechanics liens often serve merely as a starting point for negotiations and typically don't erupt into greater legal battles. Thus, if a claimant has filed a lien, they might still be able to negotiate for the payment of other, non-lienable amounts. Further, those amounts could also be recoverable via lawsuit, depending on the circumstances.
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