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Court Finds Questions of Fact on Lien Challenge

Court Finds Questions of Fact on Lien Challenge

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In Icdia Corp. v. Visaggi (2nd Dept. January 2016) the owner defendant (the “owner”) leased the commercial premises at issue to the co-defendants.  One of the co-defendants entered into a contract with the plaintiff to renovate the leased premises.  Ultimately, the plaintiff was not paid for the work completed, filed a mechanic’s lien against the property, and subsequently commenced an action against the owner to foreclose on the mechanic’s lien.

Pursuant to lien law §10(1), the mechanic’s lien must be filed within eight months of the “last item of work performed or materials furnished.”  Both the contracting co-defendant and the plaintiff submitted affidavits which detailed the work performed by the plaintiff approximately six months prior to filing the notice of the lien.  During a deposition, the co-defendant stated that the plaintiff last performed work on the premises two years prior to the filing of the notice, which the lower court found to be in clear contradiction to the affidavit.  However, the Court found that as the co-defendant “did not unequivocally testify at his deposition,” there was an issue of fact with regard to the filing time, rather than a clear contradiction.

Additionally, pursuant to lien law §3, where the property at issue is leased, “a contractor who performs work for…a tenant may nonetheless impose a mechanic’s lien against the premises where the owner has merely approved or acquiesced in the undertaking of such work…”  Here, the Court found that the owner’s agent was present when the plaintiff first met with the co-defendant to assess the job and submit his bid, and that the agent later approved the plans for the project, which was acknowledged by the owner, in writing and submitted to the Department of Buildings.  Furthermore, the agent was “constantly present” at the work site, supervising and approving the work.  As such, the Court found there to be triable issues of fact as to whether the owner, through her agent, consented to the work performed by the plaintiff.

Furthermore, the alleged release relied upon by the owner, which was given to the plaintiff by the co-defendant, was found to be ambiguous as to whether it was meant to serve as an actual assignment versus an expression of intent.

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