Pursuant to Lien Law § 38, a lienor who has filed a notice of lien must, upon demand, provide a statement which sets forth the items of labor and materials supplied and the value thereof which make up the amount of the lien. However, if the lienor fails to comply with the demand within five days, or if an insufficient statement is provided, a petition may be filed with the Court asking for an order directing the lienor to deliver a statement as required by § 38. New York Lien Law § 38.
Often times the sufficiency of the itemized statement comes into play and where the statement consists of unsigned and unverified handwritten notes regarding tasks to be performed with no indication as to what portion of the task had been completed, a court will often find such a statement as insufficient. Depalo v. McNamara, 139 A.D.2d 646 (2nd Dep’t 1988). Nothing short of a statement by the lienor setting forth a description, quantity and costs of various kinds of materials and details as to the nature of the labor, time spent and hourly or other rate of labor charged will satisfy the requirements of Lien Law § 38. 819 Sixth Ave. Corp. v. T. & A. Associates, Inc., 24 A.D.2d 446 (1st Dep’t 1965).
However, Lien Law § 38 does not establish the absolute right to a detailed statement from the lienor as to all items of labor and/or materials and the value thereof for which the lien is claimed, but rather only for those items that are in dispute. Solow v. Bethlehem Steel Corp., 60 A.D.2d 826 (1st Dep’t 1978).
Furthermore, where there is no agreed price, a lien may be filed only for the value of materials furnished and labor performed, and in such case the itemized statement will serve the purpose of apprising the owner or contractor of the lienor’s claim, and the basis of the value set forth in the lien. Matter of Borysko, 2 Misc.2d 621 (N.Y. Sup. 1956).
Finally, it is upon the Court, in its discretion, to determine whether to cancel the lienor’s mechanic’s lien due to the untimely nature of the lienor’s response to a demand for an itemized statement and verified statement of lien. J. Sackaris & Sons, Inc. v. Terra Firm Const. Management & General Contracting, LLC, 14 A.D.3d 538 (2nd Dep’t 2005).
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