My company is a general contractor for a solar project being executed in New York. One of our subcontractors has sent us a mechanics lien notice for non-payment of sums that were never approved by us under change orders. We are looking to contest the lien claim for lack of substance, but aren't sure if we can write to the county where the site is located to stop recordation of the lien claim by providing a notice of contest along with proof, or we need to wait out until county takes any action on the lien notice delivered to them. Could someone please advise the recommended course of action to contest the mechanics lien for being unsubstantiated.
A proceeding to discharge an invalid lien is limited to whether there are any facial defects with the lien (it was filed after the 8 month deadline, or it does not contain the information required by Section 9 of the Lien Law). If the challenge to the lien is substantive (i.e.: the contractor is not owed the money), then you must wait for the foreclosure action to defend against the claim on those grounds. The clerk ( the court) is not going to have the power to discharge the lien simply because you contest what's owed (that's what the foreclosure action is for). If you are anxious to have that fight sooner rather than later, you can serve a demand that the lienor foreclosure on the lien. If the lienor does not do so within 30 days, the lien is subject to being vacated. If you don't want to go that route but still want to discharge the lien, you can always obtain a lien discharge bond, or deposit money into court.
You wont be able to approach the clerk directly to contest the lien. If you believe the amount is inflated, generally the only avenue is to raise this dispute within the context of a lien foreclosure action initiated by the sub. You can either wait for them to start the case, or serve a "demand to foreclose."
You could also try writing a demand letter to the sub demanding that they withdraw the lien; or amend it to reduce the amount.
Whatever course uoj take, it's advised that you retain a construction attorney who is experienced with mechanics liens.
Trying to block the lien from being filed is a long shot at best. you may be better off bonding the lien, sending a letter to the subcontractor stating taht no lien fund for the work was created as he owner never agreed the work was a change. this may set up a claim for exaggeration or willfil exaggeration in a foreclosure action. Be careful however, unapproved change orders may be liened, and not approval of bona fide change orders is not a defense to non payment. Neither is pay when paid. the most effective defense to these types of claims is proof that the work is within the scope and not a change. Good luck