New York’s mechanic’s lien law sets forth seven items that must be included in a claimant’s notice of lien. See New York Lien Law § 9. While the statute states that the lien notice “shall” include each of the seven items, a recent New York Supreme Court decision demonstrates that failure to include one or more of these seven items can have varying consequences depending upon whether the omission is considered a substantial or a technical defect. See Avon Contractors v. D.C.M. of New York, LLC, et al.
In Avon, plaintiff-general contractor D.C.M. of New York, LLC (“DCM”) moved to discharge a mechanic’s lien filed by subcontractor J.E. Berkowitz, L.P. (“JEB”), claiming that the notice of lien violated subdivisions 1 and 1-a of New York Lien Law Section 9 (which provides that a lien notice must include “1. The name and residence of the lienor; and if the lienor is a partnership or corporation, the business address of such firm, or corporation, the names of partners and principal place of business, and if a foreign corporation, its principal place of business within the state; [and] 1-a. The name and address of the lienor’s attorney, if any”). Specifically, DCM claimed JEB’s lien should be discharged because the lien notice was defective because it listed a P.O. Box in JEB’s business address, did not identify JEB’s place of business within the State of New York or identify an attorney with an office within the State of New York, and did not list the names of JEB’s partners.
Although the Court found that listing the P.O. Box was not a defect because JEB also identified its complete business address, it ruled that JEB’s failure to include (1) an address for a place of business in New York or an attorney upon whom service could be made in New York and (2) the name of its general partners each constituted a defect in the notice. The Court held, however, that these two defects could be cured by amendment because they related to technical requirements of the lien notice and DCM did not fall within one of the enumerated categories of Section 12-a, which preclude amendment upon a showing of prejudice. Noting that the main purposes of the notice requirement are to provide information to the owner so that it may ascertain whether or not the material has actually been furnished and the services rendered, and to give notice to subsequent purchasers that there is an encumbrance on the property, the Court held that JEB “substantially complied” with the requirements of Section 9 by including, among others, “the name of the property owner, the lessee, and the company with whom the contract was made, the materials furnished and the value thereof, the amount unpaid, the time when the materials were furnished, and an accurate description of the property subject to the lien.” Accordingly, the Court granted JEB leave to serve and file an amended lien notice, retroactive to the date of the original lien notice.
All parties filing mechanic’s liens under New York’s lien law should try to comply with all of the requirements of a lien notice set forth in Section 9. As the Avon Contractors decision demonstrates, substantial compliance, at a minimum, is essential. While JEB was allowed to amend its lien notice because the defects in its notice were more technical in nature, not all claimants in the same position may be so fortunate particularly where their notice contains more substantial defects.