Filing Proof Of Service — No Wiggle Room

Written By: Randy J. Heller


When a subcontractor files a mechanic’s lien, it encumbers someone else’s property and imposes a significant burden on the owner’s ability to sell or mortgage the premises.  Thus, the legislature has determined that it cannot be done secretly.  A subcontractor-lienor must give timely notice to both the owner and the prime contractor of the filing of the lien.
By “timely” the lien law means either within 5 days before the lien is filed, but no later than 35 days after the lien is filed.  And to ensure that it gets to both the owner and contractor, it must be served by certified mail.  After it is filed, the lienor must file, within that same window, an affidavit proving that service of the lien was made by certified mail.  Section 11-b of the Lien Law provides that if proof of service is not filed within 35 days after the lien was filed, such failure “shall terminate the notice as a lien.”
In a recent case in the Supreme Court in Kings County, a subcontractor, Maximus Supply Corp., filed a lien but failed to file its proof of service. It argued that its failure to file the proof of service was a de minimis deviation from the statute because of special circumstances.  Maximus argued that the contractor, M. Hiller & Sons, had actual knowledge that the lien had been filed.  It seems that Maximus and Hiller had telephone conversations about it shortly after it was filed.  Moreover, Hiller had arranged for the lien to be bonded, and in the bond it referred to the lien and described it in complete detail (amount, date filed, etc.).  Maximus contended this should be considered adequate notice, and enough to absolve it of the severe penalty of lien invalidation.
The court disagreed and struck the lien.  The statute requires strict compliance with its notice provisions.  Although the Lien Law typically favors the liberal enforcement of liens, strictly complying with statutory notice provisions is the price one must pay for the privilege of being permitted to encumber another’s property through nothing more than the filing of a piece of paper.  The use of certified mail was a critical element of the statute and could not be waived.  The lien was therefore dismissed.

about the authors

Randy J. Heller


For over forty years, Mr. Heller has specialized in construction law and litigation, representing some of the largest and most successful contractors in the nation.

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