Court Holds Subcontractor Cannot Lien for Temporary Sidewalk Shed and Scaffold
An owner of a Manhattan 12-story building hired a contractor to perform façade repairs. The contract required a pedestrian sidewalk shed and scaffolding for the repairs, both to be removed upon completion. A subcontractor furnished and installed the shed and scaffold, to be paid on a monthly basis, and eventually removed them. The sub was not paid so it filed a mechanics lien. Because the shed and scaffold were held to be temporary structures, not a permanent improvement, the subcontractor’s mechanics lien was vacated. In the Matter of W 54-7 LLC v Interstate S&S Corp., First Department 11-3-2022.
In New York, one can file a mechanics lien for performing labor or furnishing material for the improvement of real property. The improvement must be of a permanent character. Window shades, soap dishes, and cutting a lawn are not permanent. Constructing a building is. Much lies between these poles. For example, NYC subway construction contracts sometimes call for excavating a Manhattan street while providing temporary lumber pathways for displaced traffic. When the pathways are removed, the lumber cannot be reused. The lumber supplier can lien for moneys due.
In W 54-7, the Court tried to bisect the permanent improvement: the façade repair from the temporary work. But, in our analysis, the contractor should be able to lien for both. The subcontractor furnishing and installing the sidewalk shed and scaffold should also be able to lien.
More fundamentally, the shed and scaffold are equipment. Until 1937, no mechanics lien could be asserted in New York for equipment which was not consumed in the improvement or left as a fixture. No lien could be filed for the temporary hoist dismantled at job’s end. The Legislature changed that. Now, one can lien for the reasonable value (during periods of actual use) of equipment “in connection with” the improvement. For example, a supplier delivering a trailer as a temporary construction site office expects to take it back at job’s end. The trailer is a temporary structure. Nonetheless, the supplier has a lien for its reasonable rental value.
The New York Lien Law makes a distinction. Labor and material must be furnished “for” the permanent improvement. Equipment can be lienable if used “in connection” with the permanent improvement.
Meantime, the supplier of job site toilets, Jersey barriers for highway construction, and other temporary items must beware. Until a higher court or the Legislature corrects the W 54-7 decision, the supplier may have no mechanics lien.