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Is there a cure any defense for defective service?

New YorkMechanics Lien

Lien was filed and served regular mail. Affirmation of service was timely served. Then, I followed with RRR service, but didn't file an affirmation on that service. And it was a few days late. Are there any defenses that can save my lien? Does the owner have to bring an action to discharge the lien? And then can I defend this? I know it sounds like a total nightmare. Thank you for helping me.

7 replies

Jan 20, 2021
Forgot to tell that it's NYS.
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Jan 29, 2021

If you are still within the window for filing a mechanic's lien, file a new one (and serve it properly), and then file a discharge for the old one. If not, then the lien will be considered defective.

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Jan 29, 2021
Hi Gregory. I thought maybe in real life, there might be some defenses that I didn't manage to learn, like the fact that the owner never responded to the Lien, until after a year when I filed the extension. Is there not a laches defense? There's also a question about a foreclosure action. The law seems to be that the O must compel the leinor to foreclose. Then the O comes and argue defective lien. If it's black and white, that the judge discharge the lien, does the underlying contract action remain? It is really difficult to understand this area. Perhaps in your practice you have experience on that issue? Thank you so much Gregory. Elenor
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Jan 29, 2021

There is no laches defense, and the lien is extendable up to 5 years. (As a practical matter, it takes years of inaction before a court will determine that you sat on your rights for too long; besides, extending the lien demonstrates that you are still protecting your rights.) 

Yes, even if you are successful in demanding a foreclosure and getting the lien discharged when one is not initiated, the contract claim remains.  

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Jan 29, 2021
Thank you Gregory. I am wondering why the contractor should be forced to bring a foreclosure action,, only to lose. Can the owner compel this at any time during the lien? it seems so unfair to force the contractor who is already "stiffed" on contractual payments to then have to bring foreclosure before he has a chance to assemble his case. Thanks for your availability to me.
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Jan 29, 2021

Keep in mind that a mechanic's lien is a derivative remedy, derivative of what is owed to the general contractor, that permits people who have no agreement with the owner to sue against the owner's asset (the property) . As a matter of public policy, the legislature balanced the interest of the contractor to secure its payment against the interest of the landowner to be able to compel a quicker resolution to matters, and not have a mechanic's lien sit on his or her property until the contractor deemed it fit to foreclose. 

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Jan 30, 2021
Such a fine answer! Thank you. We are hoping to settle but I will reach out, if we don't, and need to bring a K action. Thank you again.
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