Articles Tagged with special proceeding

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.

(Emphasis added.)

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.

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