§ 19 — Discharge of lien for private improvement

New York § 19

• Jurisdiction: New York
• Law LIE: Lien
• Art. 2: Mechanics' Liens

Text

§ 19. Discharge of lien for private improvement. A lien other than a\nlien for labor performed or materials furnished for a public improvement\nspecified in this article, may be discharged as follows:\n (1) By the certificate of the lienor, duly acknowledged or proved and\nfiled in the office where the notice of lien is filed, stating that the\nlien is satisfied or released as to the whole or a portion of the real\nproperty affected thereby and may be discharged in whole or in part,\nspecifying the part. Upon filing such certificate, the county clerk in\nthe office where the same is filed, shall note the fact of such filing\nin the "lien docket" in the column headed "Proceedings had" opposite the\ndocket of such lien.\n (2) By failure to begin an action to foreclose such lien or to secure\nan order continuing it, within one year from the time of filing the\nnotice of lien, unless an action be begun within the same period to\nforeclose a mortgage or another mechanic's lien upon the same property\nor any part thereof and a notice of pendency of such action is filed\naccording to law, but a lien, the duration of which has been extended by\nthe filing of a notice of the pendency of an action as herein provided,\nshall nevertheless terminate as a lien after such notice has been\ncancelled or has ceased to be effective as constructive notice.\n (3) By order of the court vacating or cancelling such lien of record,\nfor neglect of the lienor to prosecute the same, granted pursuant to\nsection fifty-nine of this chapter.\n (4) Either before or after the beginning of an action by the owner or\ncontractor executing a bond or undertaking in an amount equal to one\nhundred ten percent of such lien conditioned for the payment of any\njudgment which may be rendered against the property for the enforcement\nof the lien:\n a. The execution of any such bond or undertaking by any fidelity or\nsurety company authorized by the laws of this state to transact\nbusiness, shall be sufficient; and where a certificate of qualification\nhas been issued by the superintendent of financial services under the\nprovisions of section one thousand one hundred eleven of the insurance\nlaw, and has not been revoked, no justification or notice thereof shall\nbe necessary. Any such company may execute any such bond or undertaking\nas surety by the hand of its officers, or attorney, duly authorized\nthereto by resolution of its board of directors, a certified copy of\nwhich resolution, under the seal of said company, shall be filed with\neach bond or undertaking. Any such bond or undertaking shall be filed\nwith the clerk of the county in which the notice of lien is filed, and a\ncopy shall be served upon the adverse party. The undertaking is\neffective when so served and filed. If a certificate of qualification\nissued pursuant to subsections (b), (c) and (d) of section one thousand\none hundred eleven of the insurance law is not filed with the\nundertaking, a party may except, to the sufficiency of a surety and by a\nwritten notice of exception served upon the adverse party within ten\ndays after receipt, a copy of the undertaking. Exceptions deemed by the\ncourt to have been taken unnecessarily, or for vexation or delay, may,\nupon notice, be set aside, with costs. Where no exception to sureties is\ntaken within ten days or where exceptions taken are set aside, the\nundertaking shall be allowed.\n b. In the case of bonds or undertakings not executed pursuant to\nparagraph a of this subdivision, the owner or contractor shall execute\nan undertaking with two or more sufficient sureties, who shall be free\nholders, to the clerk of the county where the premises are situated. The\nsureties must together justify in at least double the sum named in the\nundertaking. A copy of the undertaking, with notice that the sureties\nwill justify before the court, or a judge or justice thereof, at the\ntime and place therein mentioned, must be served upon the lienor or his\nattorney, not less than five days before such time. Upon the approval of\nthe undertaking by the court, judge or justice an order shall be made by\nsuch court, judge or justice discharging such lien.\n c. If the lienor cannot be found, or does not appear by attorney,\nservice under this subsection may be made by leaving a copy of such\nundertaking and notice at the lienor's place of residence, or if a\ncorporation at its principal place of business within the state as\nstated in the notice of lien, with a person of suitable age and\ndiscretion therein, or if the house of his abode or its place of\nbusiness is not stated in said notice of lien and is not known, then in\nsuch manner as the court may direct. The premises, if any, described in\nthe notice of lien as the lienor's residence or place of business shall\nbe deemed to be his said residence or its place of business for the\npurposes of said service at the time thereof, unless it is shown\naffirmatively that the person servicing the papers or directing the\nservice had knowledge to the contrary. Notwithstanding the other\nprovisions of this subdivision relating to service of notice, in any\ncase where the mailing address of the lienor is outside the state such\nservice may be made by registered or certified mail, return receipt\nrequested, to such lienor at the mailing address contained in the notice\nof lien.\n d. Except as otherwise provided in this subdivision, the provisions of\narticle twenty-five of the civil practice law and rules regulating\nundertakings is applicable to a bond or undertaking given for the\ndischarge of a lien on account of private improvements.\n (5) Upon filing in the office of the clerk of the county where the\nproperty is situated, a transcript of a judgment of a court of competent\njurisdiction, together with due proof of service of due notice of entry\nthereof, showing a final determination of the action in favor of the\nowner of the property against which the lien was claimed.\n (6) Where it appears from the face of the notice of lien that the\nclaimant has no valid lien by reason of the character of the labor or\nmaterials furnished and for which a lien is claimed, or where for any\nother reason the notice of lien is invalid by reason of failure to\ncomply with the provisions of section nine of this article, or where it\nappears from the public records that such notice has not been filed in\naccordance with the provisions of section ten of this article, the owner\nor any other party in interest, may apply to the supreme court of this\nstate, or to any justice thereof, or to the county judge of the county\nin which the notice of lien is filed, for an order summarily discharging\nof record the alleged lien. A copy of the papers upon which application\nwill be made together with a notice setting forth the court or the\njustice thereof or the judge to whom the application will be made at a\ntime and place therein mentioned must be served upon the lienor not less\nthan five days before such time. If the lienor can not be found, such\nservice may be made as the court, justice or judge may direct. The\napplication must be made upon a verified petition accompanied by other\nwritten proof showing a proper case therefor, and upon the approval of\nthe application by the court, justice or judge, an order shall be made\ndischarging the alleged lien of record.\n