Legal Question in Construction Law in New York
Extention of Mechanic's Lien
I currently have an action pending against a contractor for breach of contract and various other causes of action. On June 5, 2006 he files a mechanic's lien against my property. Time was coming up for the lien to expire I discovered on June 5, 2006 from the County Clerks Office that the contractor's attorney went ex parte (outside of the current pending action) and got an order to extend the mechanic's lien under another index number offering no reference to the current pending action. He stated that he did not have to serve this on me because I could not put in opposition to this motion. I need to know if this is true and if not what can I do to correct this matter. I have several appeals in refence to this very lien in the action that I filed so can he go outside of my action to another Judge to get an order to extend this lien.
2 Answers from Attorneys
Re: Extention of Mechanic's Lien
Several contractors' firms have been doing this. A while ago, I responded by bringing a motion to vacate the ex parte order extending the lien, and the court took that motion very seriously...so seriously, in fact, that the judge told the lienor to be ready for trial within four weeks, or else. Well, as it evolved, the lienor abandoned the suit.
The fact that a lienor keeps extending the lien instead of bringing an action to foreclose the lien is evidence that the lien has been wilfully exaggerated. You see, only when an action is brought to foreclose the lien can there be an order imposing the penalty for wilful exaggeration. The thinking is that if they can avoid seeking to foreclose the lien, they can avoid the penalty. As indicated, the remedy to prevent that is to bring a motion, by order to show cause, to vacate the ex parte order on the ground that the ex parte matter affects a proceeding for which an RJI has been filed and the case assigned to an IAS justice.
In my case, the court made it clear that if the motion was granted--and it likely would be--she would send the file to the Departmental Disciplinary Committee with a request that they look into the certifications made when the ex parte order was obtained.
The fact that you have an *appeal* pending might change the outcome. Once an action goes up on appeal, it is no longer deemed to be pending and therefore the IAS rules might not apply with the same force and effect.
The final issue lies in the fact that the NY mechanic's lien statute is very close to the edge when it comes to the WT Grant standard for unconstitutional sequestration of property. A failure to vacate the order could very well run afoul of WT Grant.
Re: Extention of Mechanic's Lien
Your email is unclear and difficult to follow. In addition I assume you are represented by an attorney in your action against the contractor and therefore should defer to him or her. Another option would be to consult another attorney with your inquiry.
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