“Last Day Of Work” – Is That Really Unclear?
A subcontractor’s mechanic’s lien was dismissed as untimely when it was determined that the subcontractor’s last few months of work did not count as work performed pursuant to the underlying contract.
To be timely, a notice of lien on a private improvement project must be filed within eight months of the final performance of work or furnishing of materials under the contract. Lien Law §10. The “work” for which the lien is filed must be performed “under the contract.” Therefore, warranty or repair work, or new work performed outside the original contract, does not extend the time to file a lien with respect to the original contract.
In a recent case with an unusual fact pattern, a general contractor, J.T. Magin & Co. (“Magin”) performed work at a Nissan showroom. It subcontracted a portion of the work to Manhattan Mechanical Contractors (“MMC”). Magin filed a lien indicating that its last day of work was April 13, 2017. But MMC filed a lien indicating that its last day of work was July 18, 2017. Could the subcontractor’s work really extend beyond the last day of work of the general contractor?
As these things inevitably go, MMC’s lien was filed on January 31, 2018—more than 8 months from Magin’s stated completion, but less than 8 months from MMC’s stated last day.
The court held that MMC’s lien was untimely. Any work is undertaken by MMC after the cessation of Magin’s work “cannot have been pursuant to its subcontract, which by definition is subject to the scope of the general contract.” While stopping short of saying that MMC’s later work was “purely voluntary,” the court held that it was, at best, a distinct project in its own right, not part of the original project. Therefore, MMC could not bootstrap the later work onto its original subcontract work. Its original work was necessarily completed when the general contractor ceased work.
Accordingly, MMC’s lien, having been filed more than 8 months after the general contractor ceased work, was untimely and was dismissed.
Note: The 8-month deadline to file a private improvement lien (4-months for single-family homes) is firm, without any flexibility or right to extend it. As a result, contractors asleep at the switch are constantly looking to find a more recent “last day of work.” Typical attempts include come-back work, punch list work, warranty work, etc. This will forever be a fertile ground for litigation. But in theory, none of those categories of work should serve to extend the last day of work. And, as learned here, neither will subcontract work be performed after the general contractor has ceased work.