Wednesday, May 5, 2010

Petition to Cancel Mechanic's Lien Pursuant to Lien Law Section 38 Denied

In 29-32 LLC v. Neptune Contracting & Environmental, Inc. the Appellate Division, Second Department, held that the trial court property denied a motion to cancel a mechanic's lien pursuant to Lien Law Section 38.  Unfortunately the court does not give us a lot of facts on this case so we are not sure why the Section 38 was served, how, if at all, it was responded to, and why the response or lack thereof did not warrant dismissal. 

Lien Law Section 38 is a demand to a mechanic's lienor to provided a verified itemized statement of its lien and is common tool used to obtain more information about a mechanic's lien.  If the contractor does not respond to the Section 38 demand then the party serving the demand can file a petition (or motion) to compel a response to the demand.  If the motion to compel a response to the Section 38 demand is is granted and the order is not complied withe then the party serving the demand can move to have the mechanic's lien discharged.

Here we can only assume that the lienor did not respond, or did not provide a full response in the owner's view, and that was the reason for the motion to dismiss based on Section 38.

Vincent T. Pallaci is a partner at the New York law firm of Kushnick Pallaci, PLLC where his practice focuses primarily on the area of construction law.  He can be reached at (631) 752-7100 or

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