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Home>Levelset Community>Legal Help>If I was working independently for a licensed GC installing tile but I myself do not hold a license can I file a mechanics lien?I never received my final payment.i was being paid directly and was supposed to receive a 1099 for my wages.thank you for your input.

If I was working independently for a licensed GC installing tile but I myself do not hold a license can I file a mechanics lien?I never received my final payment.i was being paid directly and was supposed to receive a 1099 for my wages.thank you for your input.

New YorkLicensesMechanics LienRight to Lien

I performed tile work for a GC I was being paid directly by him but I am not licensed ,the job was filed under his license and I was being paid directly and was supposed to receive a 1099 for my wages.can I still file a mechanics lien for the last 5k owed?I gave my final breakdown of 10k plus materials,this covered a bunch of repairs that were created by other trades and 5k in kitchen backsplash work.The kitchen work was performed last,a week after my email I received 5k.for the next 2 1/2 months no communication.I contacted the homeowners architect explaining my situation and requesting contact from the homeowners before I filed a lien,within an hour I received a call from the GC offering me 1/2 of what I was owed, I said no way nonetheless you waited 10 weeks to try this ultimately the conversation ended and I haven’t received any monies of the last 5k plus materials.can I still file a lien in nyc?i have emails as well as text messages promising payment as well as outlining all of the work.thank you for any input.

1 reply

Aug 6, 2019
This is a good question. Licensing requirements can be confusing, especially when there are additional complicating factors involved. Let's break this down into parts, and try to provide some information that may help.

New York Licensing Requirements for Mechanics Liens

If New York requires a claimant to have a license for the work performed, the claimant must be licensed in order to ba able to claim a valid and enforceable mechanics lien. Additionally, the claimant must be authorized to do business in New York. That's not where the requirement stops, though. In New York parties on a construction project can be barred form filing a valid mechanics lien because of a third-party's lack of license. If a general contractor on a residential home improvement project does not have a home improvement contractor’s license/registration, his subcontractors are also prohibited from bringing a lien against the property.

The above rules are strict, and partially out of the potential claimant's control.

A complicating factor, however, is that New York doesn't generally have state-wide contractor licensing requirements. Different counties and localities in New York have separate licensing rules and requirements. This being said, some of the most common licensing requirements throughout New York are "home improvement licenses" for residential work. For example, in New York City, a home improvement contractor's license is required for anyone who performs construction, repair, remodeling, or other home improvement work costing more than $200. Similar requirements exist in Nassua County, Westchester County, and Suffolk County, among others.

Employee or Contractor

A general contractor's lack of a license (where required on residential projects) also prohibits subcontractors from filing a valid and enforceable mechanics lien, even if the subcontractor is licensed. However, if the general contractor is licensed, employees of the general contractor do not need their own separate license.

Determining whether a party is an employee or a subcontractor can be a complex and an in-depth effort. There is a lot of litigation that has taken place making these determinations. However, 1099 contractors are generally subcontractors unless the GC exercised sufficient control over the work. In a construction context, a party who subcontracts to accomplish work and bills for work and materials, is generally going to be a subcontractor rather than an employee.

Recovery Options

While there may be challenges to a lien filing, it may still be an option. Determining the applicability or validity of a lien is a very complex issue, and one that is generally not suited for a quick answer. Also, county recorders do not generally work as gatekeepers for the purposes of determining a potential lien's validity when presented with a lien to file, so when questions exist a lien may still sometimes be filed.

In the event a mechanics lien is not the appropriate remedy, however, there are still paths to recover. A lawsuit could likely be filed against the nonpaying contractor under several different causes of action. And, since there are additional subsequent promises to pay in addition to the original agreement, it does not appear that it would be too difficult to recover.

Good luck and I hope you get paid what you deserve.
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