Necessary Parties to a New York Mechanic’s Lien Foreclosure Action

Pursuant to New York’s Lien Law § 41, a lien foreclosure action may be maintained by the lienor, his assignee or legal representative. Furthermore, if two or more lienors have filed notices of lien against the same real property, or any part thereof, the lienors may join as plaintiffs in a lien foreclosure action pursuant to Lien Law § 44(5). A strong policy exists in favor of having all controversies arising out of mechanics liens on the same property to be resolved in the same action. See D.M.I. Painting, Inc. v. Eastern Long Island Hospital, 74 A.D.2d 838, 425 N.Y.S.2d 633 (2nd Dep’t 1980).

Pursuant to Lien Law § 44, necessary parties to a lien foreclosure action include: 1) all lienors who have filed notices of mechanics liens against the same property prior to the filing of a notice of pendency in the action where the filing of a notice of pendency is required; 2) all persons with subsequent mechanics liens or claims against the real property, by judgment, mortgage or otherwise, filed, docketed or recorded prior to the filing of the notice of pendency; 3) all persons appearing by the records of the county clerk or register to be owners of the real property or any part thereof; 4) where a notice of pendency may not be filed, all lienors who have filed notices of mechanics lien against the same real property, and all persons who have subsequent liens or claims against the real property, by judgment, mortgage or otherwise; and 5) the state, when a lien is filed against the funds of the state for which a public improvement is constructed or demolished.

Furthermore, even though a deposit is made to discharge a lien on the property, the owner of the property is still a necessary party in an action to foreclose the lien. See Harlem Plumbing Supply Co. v. Handelsman, 40 A.D.2d 768, 337 N.Y.S.2d 329 (1st Dep’t 1972). Conversely, if the lien is discharged by bond, the owner is no longer a necessary party under Lien Law § 44(b). However, a judgment creditor, which did not, but could have, filed a mechanic’s lien, is not entitled to the status of a mechanic’s lienor for the purpose of joinder in foreclosure pursuant to Lien Law § 62. Hurley Sand & Gravel Co., Inc. v. Italian-American Civil Rights League, Inc., 76 Misc.2d 305, 350 N.Y.S.2d 837 (N.Y. Sup. 1973).

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