When is a “waiver of lien” not really a waiver of lien in NY?

Unless you practice in construction law, you may be surprised to find out how many times a contractor signs a “lien waiver” or even a “final lien waiver” when he or she has not, in fact, been paid.  Once such instance was reviewed recently by the Second Department in Patti Construction Corp. v. 111-16 Atlantic Avenue Realty Corp.  In Patti Construction, the Court noted that while, generally, “a valid release that is clear and unambiguous on its face constitutes a complete bar to an action on a claim which is the subject of the release…”, when there is evidence that “the circumstances surrounding the release, as well as the parties’ course of dealings, evinces that the parties’ intentions were not reflected in the general germs of the release, the release does not conclusively establish a defense as a matter of law.”  In denying a motion for summary judgment based upon the written waiver of lien, the Court noted that the plaintiff submitted evidence raising triable issues of fact as to whether the parties intentions were reflected by the general release and waiver.

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