§ 2 — Definitions

New York § 2

• Jurisdiction: New York
• Law LIE: Lien
• Art. 1: Short Title; Definitions

Text

§ 2. Definitions. 1. Lienor. The term "lienor," when used in this\nchapter, means any person having a lien upon property by virtue of its\nprovisions, and includes his successor in interest.\n 2. Real property. The term "real property," when used in this chapter,\nincludes real estate, lands, tenements and hereditaments, corporeal and\nincorporeal, fixtures, and all bridges and trestle work, and structures\nconnected therewith, erected for the use of railroads, and all oil or\ngas wells and structures and fixtures connected therewith, and any lease\nof oil lands or other right to operate for the production of oil or gas\nupon such lands, and the right of franchise granted by a public\ncorporation for the use of the streets or public places thereof, and all\nstructures placed thereon for the use of such right or franchise.\n 3. Owner. The term "owner," when used in this chapter, includes the\nowner in fee of real property, or of a less estate therein, a lessee for\na term of years, a vendee in possession under a contract for the\npurchase of such real property, and all persons having any right, title\nor interest in such real property, which may be sold under an execution\nin pursuance of the provisions of statutes relating to the enforcement\nof liens of judgment, and all persons having any right or franchise\ngranted by a public corporation to use the streets and public places\nthereof, and any right, title or interest in and to such franchise. The\npurchaser of real property at a statutory or judicial sale shall be\ndeemed the owner thereof from the time of such sale. If the purchaser at\nsuch sale fails to complete the purchase, pursuant to the terms of the\nsale, all liens created by his consent after such sale shall be a lien\non any deposit made by him and not on the real property sold.\n 4. Improvement. The term "improvement," when used in this chapter,\nincludes the demolition, erection, alteration or repair of any structure\nupon, connected with, or beneath the surface of, any real property and\nany work done upon such property or materials furnished for its\npermanent improvement, and shall also include any work done or materials\nfurnished in equipping any such structure with any chandeliers, brackets\nor other fixtures or apparatus for supplying gas or electric light and\nshall also include the drawing by any architect or engineer or surveyor,\nof any plans or specifications or survey, which are prepared for or used\nin connection with such improvement and shall also include the value of\nmaterials actually manufactured for but not delivered to the real\nproperty, and shall also include the reasonable rental value for the\nperiod of actual use of machinery, tools and equipment and the value of\ncompressed gases furnished for welding or cutting in connection with the\ndemolition, erection, alteration or repair of any real property, and the\nvalue of fuel and lubricants consumed by machinery operating on the\nimprovement, or by motor vehicles owned, operated or controlled by the\nowner, or a contractor or subcontractor while engaged exclusively in the\ntransportation of materials to or from the improvement for the purposes\nthereof and shall also include the performance of real estate brokerage\nservices in obtaining a lessee for a term of more than three years of\nall or any part of real property to be used for other than residential\npurposes pursuant to a written contract of brokerage employment or\ncompensation.\n 5. Cost of improvement. The term "cost of improvement," when used in\nthis chapter, means expenditures incurred by the owner in paying the\nclaims of a contractor, an architect, engineer or surveyor, a\nsubcontractor, laborer and materialman, arising out of the improvement,\nand in paying the amount of taxes based on payrolls including such\npersons and withheld or required to be withheld and taxes based on the\npurchase price or value of materials or equipment required to be\ninstalled or furnished in connection with the performance of the\nimprovement, payment of taxes and unemployment insurance and other\ncontributions due by reason of the employment out of which any such\nclaim arose, and payment of any benefits or wage supplements or the\namounts necessary to provide such benefits or furnish such supplements,\nto the extent that the owner, as employer, is obligated to pay or\nprovide such benefits or furnish such supplements by any agreement to\nwhich he is a party, and shall also include fair and reasonable sums\npaid for obtaining building loan and subsequent financing, premiums on\nbond or bonds filed pursuant to section thirty-seven of this chapter or\nrequired by any such building loan contract or by any lease to be\nmortgaged pursuant thereto, or required by any mortgage to be\nsubordinated to the building loan mortgage, premiums on bond or bonds\nfiled to discharge liens, sums paid to take by assignment prior existing\nmortgages, which are consolidated with building loan mortgages and also\nthe interest charges on such mortgages, sums paid to discharge or reduce\nthe indebtedness under mortgages and accrued interest thereon and other\nencumbrances upon real estate existing prior to the time when the lien\nprovided for in this chapter may attach, sums paid to discharge building\nloan mortgages whenever recorded, taxes, assessments and water rents\nexisting prior to the commencement of the improvement, and also those\naccruing during the making of the improvement, and interest on building\nloan mortgages, ground rent and premiums on insurance likewise accruing\nduring the making of the improvement. The application of the proceeds of\nany building loan mortgage or other mortgage to reimburse the owner for\nany payments made for any of the above mentioned items for said\nimprovement prior to the date of the initial advance received under the\nbuilding loan mortgage or other mortgage shall be deemed to be an\nexpenditure within the "cost of improvement" as above defined; provided,\nhowever, such payments are itemized in the building loan contract and/or\nother mortgage other than a building loan mortgage, and provided\nfurther, that the payments have been made subsequent to the commencement\nof the improvement.\n 5-a. Benefits and wage supplements. The term "benefits and wage\nsupplements" as used in this chapter means all remuneration for\nemployment paid in any medium other than cash, or reimbursement for\nexpenses, or any payments which are not "wages" within the meaning of\nthe law, including, but not limited to, health, welfare,\nnon-occupational disability, retirement, vacation benefits, holiday pay\nand life insurance.\n 6. Public corporation. The term "public corporation," when used in\nthis chapter, means a municipal corporation or a district corporation or\na public benefit corporation as such corporations are defined in section\nthree of the general corporation law.\n 7. Public improvement. The term "public improvement," when used in\nthis chapter, means an improvement of any real property belonging to the\nstate or a public corporation; however, if the beneficial interest of an\nimprovement is in an entity other than the state or a public corporation\nnotwithstanding legal title being vested in an industrial development\nagency created under article eighteen-A of the general municipal law,\nthen such improvement shall be considered an improvement of real\nproperty subject to mechanics' liens on real property as provided in\nsection three of this chapter. Nothing contained in this section shall\ncreate or be deemed to create any liability upon any industrial\ndevelopment agency for the payment of the cost of any improvement, or\notherwise. For the purposes of this subdivision the term "beneficial\ninterest" shall mean the beneficial incidents of ownership of the\nimprovement to include, but not be limited to, the right to possession,\nthe right to claim tax benefits, if any, and the right to purchase or\nsecure title to the improvement pursuant to an executory contract of\nsale, option agreement or lease.\n 8. Improvement of real property. The term "improvement of real\nproperty," when used in this chapter, means any improvement of real\nproperty not belonging to the state or a public corporation.\n 9. Contractor. The term "contractor," when used in this chapter, means\na person who enters into a contract with the owner of real property for\nthe improvement thereof, or with the state or a public corporation for a\npublic improvement.\n 10. Subcontractor. The term "subcontractor" when used in this chapter,\nmeans a person who enters into a contract with a contractor and/or with\na subcontractor for the improvement of such real property or such public\nimprovement or with a person who has contracted with or through such\ncontractor for the performance of his contract or any part thereof.\n 11. Laborer. The term "laborer," when used in this chapter, means any\nperson who performs labor or services upon such improvement.\n 12. Materialman. The term "materialman" when used in this chapter,\nmeans any person who furnishes material or the use of machinery, tools,\nor equipment, or compressed gases for welding or cutting, or fuel or\nlubricants for the operation of machinery or motor vehicles, either to\nan owner, contractor or subcontractor, for, or in the prosecution of\nsuch improvement.\n The expression "furnishes material" or other similar expression\nwherever used in this chapter, shall be deemed to mean and include the\nreasonable rental value for the period of actual use of machinery, tools\nor equipment, and the value of compressed gases furnished for welding or\ncutting, and the value of fuel and lubricants consumed by machinery\noperating on, or by motor vehicles owned, operated or controlled by the\nowner, or a contractor or subcontractor while engaged exclusively in the\ntransportation of materials to or from the improvement for the purposes\nthereof.\n 13. Building loan contract. The term "building loan contract," when\nused in this chapter, means a contract whereby a party thereto, in this\nchapter termed "lender," in consideration of the express promise of an\nowner to make an improvement upon real property, agrees to make advances\nto or for the account of such owner to be secured by a mortgage on such\nreal property, whether such advances represent moneys to be loaned or\nrepresent moneys to be paid in purchasing from or in selling for such\nowner bonds or certificates secured by such mortgage upon such real\nproperty, providing, however, nothing herein contained shall be deemed\nto construe as a building loan contract a preliminary application for a\nbuilding loan made by such owner and accepted by such lender if,\npursuant to such application and acceptance, a building loan contract is\nthereafter entered into between the owner and the lender and filed as\nprovided in section twenty-two of this chapter.\n 14. Building loan mortgage. The term "building loan mortgage," when\nused in this chapter, means a mortgage made pursuant to a building loan\ncontract and includes an agreement wherein and whereby a building loan\nmortgage is consolidated with existing mortgages so as to constitute one\nlien upon the mortgaged property.\n 15. Subsequent financing. By the term "subsequent financing" is meant\nmoneys borrowed upon the security of the improvement after the recording\nof a building loan contract and/or mortgage other than a building loan\nmortgage upon the premises to be improved and within four months after\nthe completion thereof.\n 16. Prior mortgage. By the term "prior mortgage" is meant a mortgage\non real property and/or leasehold recorded prior to the commencement of\nan improvement thereon.\n 17. Consideration. The term "consideration" when used in this chapter,\nincludes real property as defined in section two hereof, and personal\nproperty as defined in section thirty-nine of the general construction\nlaw.\n 18. Advances. The term "advances" when used in this chapter, includes\nmoney, real property as defined in section two hereof and/or personal\nproperty as defined in section thirty-nine of the general construction\nlaw.\n 19. Funds. The term "funds" when used in this chapter, includes money,\nreal property as defined in section two hereof and/or personal property\nas defined in section thirty-nine of the general construction law.\n 20. Persons. The term "persons" when used in this chapter, includes an\nindividual, partnership, association, trust or corporation.\n