The Last Date Of Work Revisited. Literally.
A private improvement lien on a single-family house must be filed within four months of the last day of work. As we have noted in other postings, courts have had a difficult time defining with specificity exactly what constitutes lienable “work” in order to determine when that last day may have occurred. The problem arises as well on commercial projects, although there the contractor has up to eight months to file a lien measured from the last day of work.
With such a short window, it is not surprising that contractors who have inadvertently blown the 4-month time frame might be tempted to go back and do something else in an attempt to restart the clock. Can they?
In a recent case in the Supreme Court in Suffolk County, a subcontractor got into a dispute with its general contractor, and their relationship was severed. Much of the case hinged on whether the subcontractor abandoned the work or was terminated, but that was not especially germane to the issue of whether the subcontractor’s mechanic’s lien for $103,000, filed on September 9, was filed in a timely manner. The lien identified March 15 (more than 4 months earlier) as the last date it furnished any materials to the job. But it identified May 9 (exactly 4 months before) as the last date on which it performed any labor at the site. But what did that labor consist of?
The subcontractor identified 3 basic things it did on May 9: it returned to the site to inspect its work; take an inventory of the materials it left behind, and remove non-conforming materials. Did any of those tasks constitute lienable work sufficient to start the clock ticking on a new 4 month period? According to the court, “no.”
Even construing the lien law “liberally to secure the beneficial interests and purposes thereof,” none of those acts extended the time. The mere act of inspection did not result in any actual physical permanent improvement and so did not constitute lienable “work” —even if it was a requirement under the contract. Similarly, performing an inventory failed as a basis for a lien. And the removal of non-conforming flooring materials “cannot be said to have led to any improvement of the property.”
The court found that none of these “come-back” acts served to re-start the 4-month clock and it dismissed the mechanic’s lien as untimely.
With such a short window to file a lien, it is necessary to keep on top of important deadlines such as this. Hopefully, you will not revisit this unfortunate scenario on your project.