Far and away the biggest complaint about mechanic’s liens is that the money is not owed. Unfortunately for those in New York, that is an issue that does not bring about a challenge under Lien Law Section 19. The reason is that under New York law, only a “facial defect” to a mechanic’s lien permits summary disposition of the lien. A challenge to the amount due (if any) is never a facial defect. As such, the only remedies available to someone challenging a New York mechanic’s lien based upon the amount of the lien are to: 1) serve a demand under Lien Law Section 59 so that the issue of payment can be raised in the foreclosure action; or 2) file a plenary action seeking to recover on an alternate theory (including “wrongfully filed mechanic’s lien”).
There are, of course, certain defects that are “facial defects” and permit the commencing of a summary proceeding to discharge the lien. Some examples of facial defects are:
- Identifying the lienor’s principal place of business as P.O. Box
- Identifying the lienor’s principal place of business as an address outside the state of New York and not including the address of a New York attorney upon whom service may be made
- Including a date of last service that puts the lien outside the permissible time period
- Incorrect property description
- Liening for services that do not qualify under the Lien Law (based solely upon the description provided)
- Failure to include all of the items required by the Lien Law
- If the Lienor is a partnership, failing to identify the partners and their addresses
This is, of course, not an exclusive list of facial defects but, rather, just a sample of some of the more common facial defects that can lead to discharge of the lien under Section 19.