Summary dismissal of a mechanic’s lien is a tricky business. It is fundamental that a mechanic’s lien may be summarily discharged only for defects appearing on its face. Di-Com Corp. v. Active Fire Sprinkler Corp., 36 A.D.2d 20, 21, 318 N.Y.S.2d 249, 250 (1st Dept. 1971). In fact, Section 19(6) of the Lien Law specifically states, in pertinent part, as follows:
Where it appears from the face of the notice of lien that the claimant has not valid lien … the owner or any other party in interest, may apply to the supreme court of this state, or to any justice thereof, or to the county judge of the county in which the notice of lien is filed, for an order summarily discharging of record the alleged lien.
Thus, there can be no summary discharge if there are disputed issues of fact: “It has been consistently held that objections to a notice of lien which do not involve matters appearing on the face of the lien, raise issues of fact for disposition upon trial rather than upon a motion to vacate the lien.” In re Miller, 133 N.Y.S.2d 421, 422 (Sup. Ct. Suffolk Co. 1954). This is so “[d]espite the existence of a multiplicity of reasons which render [the lien] invalid ….” Country Village Heights Condominium (Group I) v. Mario Bonito, Inc., 79 Misc.2d 1088, 1091, 363 N.Y.S.2d 501, 505 (Sup. Ct. Rockland Co. 1975). As long as the notice is valid on its face, it cannot be discharged based on factual grounds.
However, what constitutes a facial defect is not always readily apparent. For example, whether or not an owner has consented to an improvement is a question of fact that cannot be summarily determined, especially where the question is whether a tenant had permission from the owner to perform the improvement. See Cleg Co. v. Henry Moss & Co., 64 N.Y.S.2d 99, 100 (Sup. Ct. Kings Co. 1946); see also Church E. Gates & Co. v. Empire City Racing Ass’n, 225 N.Y. 142, 153 (1919); Care Systems, Inc. v. Laramee, 155 A.D.2d 770, 547 N.Y.S.2d 471 (3rd Dept. 1989).
It should also be noted that the Lien Law specifically allows a lien to attach to a leasehold interest in privately owned real estate. Lien Law §2(3); Ingram & Greene, Inc. v. Wynne, 47 Misc.2d 200, 203, 262 N.Y.S.2d 663, 666 (Sup. Ct. Queens Co. 1965).
Interestingly, some ground leases include provisions notifying potential lienors that the lease cannot by itself be construed as consent under the Lien Law (keeping in mind that any potential lienor would not be a party to that ground lease). To the extent a lease provision purports to absolve an owner from any work performed at the property for the ground tenant and precludes any mechanic’s lien from attaching to the property, such a provision is most likely unenforceable. Section 34 of the Lien Law expressly states that any contract, agreement or understanding waiving the right to file or enforce a lien is “void as against public policy and wholly unenforceable.”