Home>Levelset Community>Legal Help>we are a manufacturer and supplier of windows in NY. we have a contract with an installer in NY for a jobsite in NY. they paid 50% in deposit. now we are ready to ship the windows but they are refusing delivery. can we lien to get the remaining 50% due? or no because we have not shipped the windows?
we are a manufacturer and supplier of windows in NY. we have a contract with an installer in NY for a jobsite in NY. they paid 50% in deposit. now we are ready to ship the windows but they are refusing delivery. can we lien to get the remaining 50% due? or no because we have not shipped the windows?
That's a good question, and it's one we get pretty often here at the Construction Legal Center. Ultimately, understanding what amounts are and are not subject to mechanics liens lies at the root of mechanics lien laws. Mechanics lien rights are available for those who improve property but go unpaid for their work. For material suppliers, lien rights exist for materials that are incorporated into the project, thereby improving the property, but go unpaid. When materials haven't been delivered, those materials have provided no improvement to the property. What's more, typically, undelivered materials can easily be kept and resold if the order for those materials is cancelled. Because property is not improved by materials undelivered, and because those materials can typically be very easily re-purposed, those who supply materials will generally not have the right to file a lien for materials that have been ordered but not actually delivered and incorporated. Of course, that doesn't mean that some other payment recovery option isn't available - a supplier who has contracted for work and then has their order cancelled may certainly have some other recourse, such as damages under breach of contract. But, when materials have not been delivered, very typically, those materials will not give rise to lien rights. However, an exception exists when materials are specifically manufactured to fit the given project. Where materials are manufactured for a job and not easily reusable on some other job, many states, including New York, will provide the manufacturer of those materials the right to lien when the materials have been manufactured but not furnished and incorporated. Specifically, under § 3 of the New York mechanics lien statute, "...materials actually manufactured for but not delivered to the real property, shall also be deemed to be materials furnished." Thus, those materials may give rise to lien rights.
For more on New York lien law, this is a great resource: New York Lien and Notice FAQs.