STA LEGAL LOG – June 2022
Co-Managing Partner (LI),
Kaufman Dolowich Voluck
Attorneys at Law Legal Counsel,
Subcontractors Trade Association
PRESERVING AND RENEWING LIENS
By: Andrew Richards, Co-Managing Partner(LI), Kaufman Dolowich Voluck, Attorneys at Law Legal Counsel, Subcontractors Trade Association
Section 17 of the Lien Law codifies how a lienor may renew its lien against a private improvement. A lien is good for one year and must be renewed by an extension of lien prior to the expiration of the lien unless the lienor commences an action and files a notice of pendency. The notice of pendency (with the commencement of the action) renews the lien for three years and the notice of pendency must be renewed thereafter for other three-year periods. However, if the lien was discharged by bond prior to the commencement of the foreclosure action, the lienor may not file a notice of pendency and must simply commence the action. The lienor may not seek to have the lien renewed nunc pro tunc after it expires. If the lien was renewed by extension only, the lienor may renew the lien by court orders for three successive years and must then bring a foreclosure action and file a notice of pendency. If the lienor fails to timely renew the lien, the lienor may file a new lien if the time to file a lien has not expired (8 months from the last day of work for a commercial project). However, the lienor, if a subcontractor, will have to hope that the owner did not pay the general contractor any sums due the general contractor from the time of the expiration of the original lien until the filing of the new lien, especially the final payment. The owner does not pay twice for the same work so the lien will be ineffective as the lien cannot attach to any funds previously owed by the owner to the general contractor. The new lien will attach to any funds which become due and owing to the general contractor after the new lien is served and filed. Section 18 of the Lien Law codifies how a lienor may renew its lien against a public improvement. Section 18 essentially mirrors Section 17 except for two important points. First, the lienor must still file a notice of pendency with the public owner entity even if the lien was discharged by bond. This is often overlooked and is fatal to a public lien foreclosure action. Second, a notice of pendency does not have to be renewed to preserve the lien.