When payment problems become too much to handle on a construction project, savvy contractors will look to lien laws to help secure payment. However, in order to reap the benefits of lien rights, there are a number of steps that must be taken, along with strict deadlines that must be met. To meet these deadlines, claimants must be prepared — and an often overlooked aspect of this process is getting your filing fees correct. Most recorders will refuse to file a claim if the check is made out to the wrong amount; whether it’s too little or too much. For example, a recent NY subcontractor missed their filing deadline and the Kings Couty Supreme Court held that the claimant must provide the proper filing fees to get their claim recorded.
New York City lien filing fees
Dealing with a county clerk’s office can be challenging at times (see: FL Appellate Court Rules Clerk Must Record Liens When Received and Paid). But it doesn’t have to be, as long as you’re properly prepared.
To make matters more confusing, each office tends to have its own specific rules and requirements. This includes a number of different things; required information, specific font sizes, margin requirements, and (for the purposes of this article) filing fees. The requirements in New York can vary quite a bit from office to office, but if filing in one of the NYC boroughs, the filing fee is fairly standardized under NY CPLR §8021(b)(4):
“For filing a notice of mechanics lien, or a notice of lending, in counties within the city of New York, thirty dollars…”
Getting a lien rejected by the clerk’s office can be devastating, especially if you wait until the last minute. This is exactly what happened recently to a NY subcontractor in King’s County who lost missed their deadline because they made out a check for $5 over the statutory filing fee.
Dive deeper: How to File a New York Mechanics Lien | A Step-by-Step Guide to Get You Paid
NY lien claim rejected due to improper filing fees
The case in question is Monfort Bros. Inc. v. Nancy T Sunshine, Esq. in her official capacity as Clerk, Kings County
Project Snapshot:
- Subcontractor/Claimant: Montfort Bros. Inc. (Montfort)
- Represented by: Jonathan M. Bardavid of Daniels, Porco and Lusardi, LLP
- County Clerk: Nancy T. Sunshine, Esq. (Clerk)
- Represented by: Eileen D. Millet Counsel for the NYS Office of Court Administration
Monfort was a subcontractor on a private project located in Kings County, NY. When they finished work on the project, there was an outstanding balance remaining under their contract, so they decided to pursue a lien claim.
In New York, the deadline to file a mechanics lien is generally 8 months from the claimant’s last date of furnishing labor and/or materials to the project. Monfort’s last date of furnishing was March 12, 2020 making the latest date to file their claim November 12, 2020.
Monfort was under the impression that the Kings County Clerk’s Office was closed to the public as a result of the COVID-19 pandemic, so they mailed their claim. On November 4, 2020, the Kings County Clerk’s Office received Monfort’s notice of mechanics lien along with two checks — one for $35 and one for $10.
However, the claim was rejected because neither of the checks was in the proper amount of $30, as required under CPLR §8021.
On November 13, 2020, the Clerk received the same mechanics lien claim dated October 29, 2020, for recording. However, the Clerk noted that the last date of furnishing was March 12, 2020 — making the claim late by one day — and it was once again rejected.
Claimant files lawsuit against the Clerk’s Office
In response, Monfort filed an action to contest the Clerk’s decision to reject the November 4 submission on the grounds that the claim wasn’t accompanied by the statutory fee.
Monfort’s argument boils down to this: The claim was mailed because the office was closed due to COVID-19, and regardless, the Clerk should have contacted Monfort’s attorney for instructions on how to handle the $35.
Regarding the allegation that the clerk’s office was closed due to COVID-19
The court first noted that the assertion that the Kings County Clerk’s Office was not open to the public was incorrect. The office was, at all relevant times, open to the public for those seeking to file a lien. Individuals were not permitted to enter room 189, but a representative was available at the entrance to review and accept the claim on behalf of the Clerk. This had been the case since March 16, 2020.
As such, the petitioner could have filed the Claim of Mechanics lien in person, and made any corrective action that may have been required had they chosen to do so.
Regarding the rejection for incorrect fees
The court proceeded to evaluate whether the rejection was improper, which requires that the decision was “an error of law or was arbitrary and capricious or an abuse of discretion. None of which were evident in the present case.
New York law only authorizes the Kings County Clerk to accept payment of $30 for filing and recording a notice of mechanics lien. CPLR 8021(b)(4) specifically requires the payment of a statutory fee of $30 “in advance” for filing and recording a notice of mechanics lien. Given the clear and unambiguous language of the CPLR, the Kings County Clerk’s Office properly rejected petitioner’s tender of a check for the sum of $35.
The court concluded by stating “county clerks become obligated to perform their duties when the statutory prerequisites are satisfied and the proper fee is paid.” Monfort failed to establish that they had complied with both Section 10 of the Lien Law and were accompanied by the required fees under the CPLR.
Therefore, Monfort’s petition was denied.
Double-check filing fees before mailing your lien claim
As trivial as this may seem, them’s the rules. And as you can see, when filing a lien in New York, cutting the check for the proper amount is crucial to getting your claim filed. This is particularly true if filing your claim through the mail.
In-person filings at least allow you to correct any mistakes you may have on the spot. If not, be sure to contact your county recorder’s office prior to mailing your claim out. You don’t want to miss your deadlines based on a technicality!
See: Essential Questions to Ask the County Recorder Before Filing a Lien