A mechanic’s lien can cloud title, delay financing, interfere with a sale, and create immediate pressure in a construction dispute.
When the lien amount appears inflated or unsupported, New York law provides a powerful and time-sensitive remedy.
Under § 38 of the New York Lien Law, a property owner or contractor may demand that the lienor provide a verified itemized statement of the labor and materials forming the basis of the lien. If the lienor fails to comply within five days, the lien may be subject to discharge through a special proceeding, which is significantly faster than a plenary action.
New York Lien Law § 38: The Statutory Framework
Section 38 is designed to promote transparency in mechanic’s lien practice.
Upon written demand, the lienor must provide a verified written breakdown of:
- The specific labor performed
- The specific materials furnished
- The value of each item
- The contract terms under which the lien is claimed
A lump-sum balance or vague description of work performed is not sufficient. The statute requires meaningful detail so that the owner or contractor can evaluate whether the lien amount is legitimate.
The lienor must respond within five (5) days of receiving the written demand.
What Happens If the Lienor Fails to Provide an Itemized Statement?
If the lienor fails to respond within five days, or provides a conclusory, unverified, or insufficient breakdown, the demanding party may apply to the court for relief.
New York courts have recognized that failure to comply with Lien Law § 38 may result in the mechanic’s lien being vacated or discharged. Noncompliance is not merely a discovery issue — it affects the statutory sufficiency of the lien itself.
Why Procedure Matters: Special Proceeding vs. Plenary Action
An application to discharge a mechanic’s lien for failure to provide a proper itemized statement may be brought as a special proceeding in New York Supreme Court.
A special proceeding:
- Is commenced by petition and order to show cause
- Moves on an accelerated timeline
- s typically decided on motion papers
- Avoids extended pleadings and discovery
By contrast, a plenary action requires a summons and complaint, responsive pleadings, and often protracted litigation. For owners facing delayed closings, stalled refinancing, or title complications, the ability to move quickly can be decisive.
When Should You Consider Serving a § 38 Demand?
You should consider serving a written demand under Lien Law § 38 when:
- The lien amount appears inflated
- The lien contains broad or vague categories of work
- The lienor has not provided detailed backup documentation
- The lien is interfering with financing, refinancing, or sale
Frequently Asked Questions
How do you remove a mechanic’s lien in New York for failure to itemize?
Serve a written demand under Lien Law § 38 requesting a verified itemized statement. If the lienor fails to comply within five days, you may commence a special proceeding seeking discharge of the lien.
Is failure to respond automatic grounds for discharge?
Not automatically. A court application is required. However, courts may discharge the lien where the lienor fails to comply with the statutory requirement.
Is a special proceeding faster than a plenary lawsuit?
Yes. Special proceedings move on accelerated schedules and are generally resolved much faster than full plenary actions.
Related Reading
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Construction Litigation Representation in New York
Gill & Kadochnikov P.C. represents property owners, developers, general contractors, and subcontractors in construction disputes throughout New York.
Our practice includes:
- Enforcing and challenging mechanic’s liens
- Serving and litigating Lien Law § 38 itemized statement demands
- Commencing special proceedings to discharge defective liens
- Defending lien foreclosure actions
- Litigating breach of construction contract claims
If your property is burdened by a mechanic’s lien — or if you need to protect your lien rights — contact Gill & Kadochnikov P.C. to discuss your New York construction dispute.