Historical case note, reviewed September 7, 2026.
In Matter of 29-32 LLC v. Neptune Contracting & Environmental, Inc., 72 A.D.3d 1106 (2d Dep’t 2010), the Appellate Division affirmed denial of a motion to cancel a mechanic’s lien under Lien Law § 38.
Why cancellation was denied
The decision identifies an existing action in which the lienor had already asserted a claim to foreclose the same lien. In those circumstances, the court declined to cancel the lien at that stage, without preventing either party from raising lien issues in the pending action. The decision does not establish that the lienor ignored a demand; that should not be assumed.
The required Section 38 procedure
Lien Law § 38 requires a verified itemized statement upon an owner’s or contractor’s written demand. A missing or insufficient response within five days can support an application for an order compelling compliance. Cancellation for noncompliance requires the further statutory procedure after failure to obey that order.
The First Department reinforced that sequence in Matter of Broadway PT 1710 LLC v. Kingdom Associates, Inc., 250 A.D.3d 468 (2026): § 38 did not support discharge where no court had ordered itemization. The court also addressed duplicative proceedings involving a pending foreclosure action.
Before starting a separate proceeding, review the demand, response, service, existing orders and pending litigation. Kushnick Pallaci PLLC handles Section 38 itemization matters and mechanic’s lien foreclosure and defense.
Vincent T. Pallaci is the firm’s managing member. Call 631-752-7100 or email vtp@kushnicklaw.com.
Attorney Advertising. General information, not legal advice.
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