[ ] is old law to be omitted.
LBD00946-07-0
S. 7256 2
§ 2. Section 3 of the lien law, as amended by chapter 137 of the laws
of 1985, is amended to read as follows:
§ 3. Mechanic's lien AND EMPLOYEE'S LIEN on [real] property. 1.
MECHANIC'S LIEN. A contractor, subcontractor, laborer, materialman,
landscape gardener, nurseryman or person or corporation selling fruit or
ornamental trees, roses, shrubbery, vines and small fruits, who performs
labor or furnishes materials for the improvement of real property with
the consent or at the request of the owner thereof, or of his agent,
contractor or subcontractor, and any trust fund to which benefits and
wage supplements are due or payable for the benefit of such laborers,
shall have a lien for the principal and interest, of the value, or the
agreed price, of such labor, including benefits and wage supplements due
or payable for the benefit of any laborer, or materials upon the real
property improved or to be improved and upon such improvement, from the
time of filing a notice of such lien as prescribed in this chapter.
Where the contract for an improvement is made with a husband or wife and
the property belongs to the other or both, the husband or wife contract-
ing shall also be presumed to be the agent of the other, unless such
other having knowledge of the improvement shall, within ten days after
learning of the contract give the contractor written notice of his or
her refusal to consent to the improvement. Within the meaning of the
provisions of this chapter, materials actually manufactured for but not
delivered to the real property, shall also be deemed to be materials
furnished.
2. EMPLOYEE'S LIEN. AN EMPLOYEE WHO HAS A WAGE CLAIM AS THAT TERM IS
DEFINED IN SUBDIVISION TWENTY-THREE OF SECTION TWO OF THIS CHAPTER SHALL
HAVE A LIEN ON HIS OR HER EMPLOYER'S INTEREST IN PROPERTY FOR THE VALUE
OF THAT EMPLOYEE'S WAGE CLAIM ARISING OUT OF THE EMPLOYMENT, INCLUDING
LIQUIDATED DAMAGES PURSUANT TO SUBDIVISION ONE-A OF SECTION ONE HUNDRED
NINETY-EIGHT, SECTION SIX HUNDRED SIXTY-THREE OR SECTION SIX HUNDRED
EIGHTY-ONE OF THE LABOR LAW, OR 29 U.S.C. § 216 (B), FROM THE TIME OF
FILING A NOTICE OF SUCH LIEN AS PRESCRIBED IN THIS CHAPTER. AN EMPLOY-
EE'S LIEN BASED ON A WAGE CLAIM MAY BE HAD AGAINST THE EMPLOYER'S INTER-
EST IN REAL PROPERTY AND AGAINST THE EMPLOYER'S INTEREST IN PERSONAL
PROPERTY THAT CAN BE SUFFICIENTLY DESCRIBED WITHIN THE MEANING OF
SECTION 9-108 OF THE UNIFORM COMMERCIAL CODE, EXCEPT THAT AN EMPLOYEE'S
LIEN SHALL NOT EXTEND TO DEPOSIT ACCOUNTS OR GOODS AS THOSE TERMS ARE
DEFINED IN SECTION 9-102 OF THE UNIFORM COMMERCIAL CODE. THE DEPARTMENT
OF LABOR AND THE ATTORNEY GENERAL MAY OBTAIN AN EMPLOYEE'S LIEN FOR THE
VALUE OF WAGE CLAIMS OF THE EMPLOYEES WHO ARE THE SUBJECT OF THEIR
INVESTIGATIONS, COURT ACTIONS OR ADMINISTRATIVE AGENCY ACTIONS.
3. AS USED IN THIS ARTICLE AND UNLESS OTHERWISE SPECIFIED, A LIEN
SHALL MEAN AN EMPLOYEE'S LIEN OR A MECHANIC'S LIEN.
§ 3. Subdivisions 1 and 2 of section 4 of the lien law, subdivision 1
as amended by chapter 515 of the laws of 1929 and subdivision 2 as added
by chapter 704 of the laws of 1985, are amended to read as follows:
(1) [Such] A MECHANIC'S OR EMPLOYEE'S lien AND EMPLOYEE'S LIEN AGAINST
REAL PROPERTY shall extend to the owner's right, title or interest in
the real property and improvements, existing at the time of filing the
notice of lien, or thereafter acquired, except as hereinafter in this
article provided. If an owner assigns his interest in such real property
by a general assignment for the benefit of creditors, within thirty days
prior to such filing, the lien shall extend to the interest thus
assigned. If any part of the real property subjected to such lien be
removed by the owner or by any other person, at any time before the
discharge thereof, such removal shall not affect the rights of the
S. 7256 3
lienor, either in respect to the remaining real property, or the part so
removed. If labor is performed for, or materials furnished to, a
contractor or subcontractor for an improvement, the MECHANIC'S lien
shall not be for a sum greater than the sum earned and unpaid on the
contract at the time of filing the notice of lien, and any sum subse-
quently earned thereon. In no case shall the owner be liable to pay by
reason of all MECHANIC'S liens created pursuant to this article a sum
greater than the value or agreed price of the labor and materials
remaining unpaid, at the time of filing notices of such liens, except as
hereinafter provided.
(2) [Such] A MECHANIC'S OR EMPLOYEE'S lien shall not extend to the
owner's right, title or interest in real property and improvements,
existing at the time of filing the notice of lien if such lien arises
from the failure of a lessee of the right to explore, develop or produce
natural gas or oil, to pay for, compensate or render value for improve-
ments made with the consent or at the request of such lessee by a
contractor, subcontractor, materialman, equipment operator or owner,
landscaper, nurseryman, or person or corporation who performs labor or
furnishes materials for the exploration, development, or production of
oil or natural gas or otherwise improves such leased property. Such
MECHANIC'S OR EMPLOYEE'S lien shall extend to the improvements made for
the exploration, development and production of oil and natural gas, and
the working interest held by a lessee of the right to explore, develop
or produce oil and natural gas.
§ 4. The opening paragraph of section 4-a of the lien law, as amended
by chapter 696 of the laws of 1959, is amended to read as follows:
The proceeds of any insurance which by the terms of the policy are
payable to the owner of real property improved, and actually received or
to be received by him because of the destruction or removal by fire or
other casualty of an improvement on which lienors have performed labor
or services or for which they have furnished materials, OR UPON WHICH AN
EMPLOYEE HAS ESTABLISHED AN EMPLOYEE'S LIEN, shall after the owner has
been reimbursed therefrom for premiums paid by him, if any, for such
insurance, be subject to liens provided by this act to the same extent
and in the same order of priority as the real property would have been
had such improvement not been so destroyed or removed.
§ 5. Subdivisions 1, 2 and 5 of section 9 of the lien law, as amended
by chapter 515 of the laws of 1929, are amended to read as follows:
1. The name OF THE LIENOR, and EITHER THE residence of the lienor OR
THE NAME AND BUSINESS ADDRESS OF THE LIENOR'S ATTORNEY, IF ANY; and if
the lienor is a partnership or a corporation, the business address of
such firm, or corporation, the names of partners and principal place of
business, and if a foreign corporation, its principal place of business
within the state.
2. The name of the owner of the [real] property against whose interest
therein a lien is claimed, and the interest of the owner as far as known
to the lienor.
5. The amount unpaid to the lienor for such labor or materials, OR THE
AMOUNT OF THE WAGE CLAIM IF A WAGE CLAIM IS THE BASIS FOR ESTABLISHMENT
OF THE LIEN, THE ITEMS OF THE WAGE CLAIM AND THE VALUE THEREOF WHICH
MAKE UP THE AMOUNT FOR WHICH THE LIENOR CLAIMS A LIEN.
§ 6. Subdivision 1 of section 10 of the lien law, as amended by chap-
ter 367 of the laws of 2011, is amended to read as follows:
1. (A) Notice of MECHANIC'S lien may be filed at any time during the
progress of the work and the furnishing of the materials, or, within
eight months after the completion of the contract, or the final perform-
S. 7256 4
ance of the work, or the final furnishing of the materials, dating from
the last item of work performed or materials furnished; provided, howev-
er, that where the improvement is related to real property improved or
to be improved with a single family dwelling, the notice of MECHANIC'S
lien may be filed at any time during the progress of the work and the
furnishing of the materials, or, within four months after the completion
of the contract, or the final performance of the work, or the final
furnishing of the materials, dating from the last item of work performed
or materials furnished; and provided further where the notice of MECHAN-
IC'S lien is for retainage, the notice of MECHANIC'S lien may be filed
within ninety days after the date the retainage was due to be released;
except that in the case of a MECHANIC'S lien by a real estate broker,
the notice of MECHANIC'S lien may be filed only after the performance of
the brokerage services and execution of lease by both lessor and lessee
and only if a copy of the alleged written agreement of employment or
compensation is annexed to the notice of lien, provided that where the
payment pursuant to the written agreement of employment or compensation
is to be made in installments, then a notice of lien may be filed within
eight months after the final payment is due, but in no event later than
a date five years after the first payment was made. For purposes of this
section, the term "single family dwelling" shall not include a dwelling
unit which is a part of a subdivision that has been filed with a munici-
pality in which the subdivision is located when at the time the lien is
filed, such property in the subdivision is owned by the developer for
purposes other than his personal residence. For purposes of this
section, "developer" shall mean and include any private individual,
partnership, trust or corporation which improves two or more parcels of
real property with single family dwellings pursuant to a common scheme
or plan. [The]
(B) NOTICE OF EMPLOYEE'S LIEN MAY BE FILED AT ANY TIME NOT LATER THAN
THREE YEARS FOLLOWING THE END OF THE EMPLOYMENT GIVING RISE TO THE WAGE
CLAIM.
(C) A notice of lien, OTHER THAN FOR A LIEN ON PERSONAL PROPERTY, must
be filed in the clerk's office of the county where the property is situ-
ated. If such property is situated in two or more counties, the notice
of lien shall be filed in the office of the clerk of each of such coun-
ties. The county clerk of each county shall provide and keep a book to
be called the "lien docket," which shall be suitably ruled in columns
headed "owners," "lienors," "lienor's attorney," "property," "amount,"
"time of filing," "proceedings had," in each of which he shall enter the
particulars of the notice, properly belonging therein. The date, hour
and minute of the filing of each notice of lien shall be entered in the
proper column. Except where the county clerk maintains a block index,
the names of the owners shall be arranged in such book in alphabetical
order. The validity of the lien and the right to file a notice thereof
shall not be affected by the death of the owner before notice of the
lien is filed. A NOTICE OF EMPLOYEE'S LIEN ON PERSONAL PROPERTY MUST BE
FILED, TOGETHER WITH A FINANCING STATEMENT, IN THE FILING OFFICE AS SET
FORTH IN SECTION 9-501 OF THE UNIFORM COMMERCIAL CODE.
§ 7. Section 11 of the lien law, as amended by chapter 147 of the laws
of 1996, is amended to read as follows:
§ 11. Service of copy of notice of lien. 1. Within five days before
or thirty days after filing the notice of A MECHANIC'S lien, the lienor
shall serve a copy of such notice upon the owner, if a natural person,
(a) by delivering the same to him personally, or if the owner cannot be
found, to his agent or attorney, or (b) by leaving it at his last known
S. 7256 5
place of residence in the city or town in which the real property or
some part thereof is situated, with a person of suitable age and
discretion, or (c) by registered or certified mail addressed to his last
known place of residence, or (d) if such owner has no such residence in
such city or town, or cannot be found, and he has no agent or attorney,
by affixing a copy thereof conspicuously on such property, between the
hours of nine o'clock in the forenoon and four o'clock in the afternoon;
if the owner be a corporation, said service shall be made (i) by deliv-
ering such copy to and leaving the same with the president, vice-presi-
dent, secretary or clerk to the corporation, the cashier, treasurer or a
director or managing agent thereof, personally, within the state, or
(ii) if such officer cannot be found within the state by affixing a copy
thereof conspicuously on such property between the hours of nine o'clock
in the forenoon and four o'clock in the afternoon, or (iii) by regis-
tered or certified mail addressed to its last known place of business.
Failure to file proof of such a service with the county clerk within
thirty-five days after the notice of lien is filed shall terminate the
notice as a lien. Until service of the notice has been made, as above
provided, an owner, without knowledge of the lien, shall be protected in
any payment made in good faith to any contractor or other person claim-
ing a lien.
2. WITHIN FIVE DAYS BEFORE OR THIRTY DAYS AFTER FILING THE NOTICE OF
AN EMPLOYEE'S LIEN, THE LIENOR SHALL SERVE A COPY OF SUCH NOTICE UPON
THE EMPLOYER, IF A NATURAL PERSON, (A) BY DELIVERING THE SAME TO HIM
PERSONALLY, OR IF THE EMPLOYER CANNOT BE FOUND, TO HIS AGENT OR ATTOR-
NEY, OR (B) BY LEAVING IT AS HIS LAST KNOWN PLACE OF RESIDENCE OR BUSI-
NESS, WITH A PERSON OF SUITABLE AGE AND DISCRETION, OR (C) BY REGISTERED
OR CERTIFIED MAIL ADDRESSED TO HIS LAST KNOWN PLACE OF RESIDENCE OR
BUSINESS, OR (D) IF SUCH EMPLOYER OWNS REAL PROPERTY, BY AFFIXING A COPY
THEREOF CONSPICUOUSLY ON SUCH PROPERTY, BETWEEN THE HOURS OF NINE
O'CLOCK IN THE FORENOON AND FOUR O'CLOCK IN THE AFTERNOON. THE LIENOR
ALSO SHALL, WITHIN THIRTY DAYS AFTER FILING THE NOTICE OF EMPLOYEE'S
LIEN, AFFIX A COPY THEREOF CONSPICUOUSLY ON THE REAL PROPERTY IDENTIFIED
IN THE NOTICE OF EMPLOYEE'S LIEN, BETWEEN THE HOURS OF NINE O'CLOCK IN
THE FORENOON AND FOUR O'CLOCK IN THE AFTERNOON. IF THE EMPLOYER BE A
CORPORATION, SAID SERVICE SHALL BE MADE (I) BY DELIVERING SUCH COPY TO
AND LEAVING THE SAME WITH THE PRESIDENT, VICE-PRESIDENT, SECRETARY OR
CLERK TO THE CORPORATION, THE CASHIER, TREASURER OR A DIRECTOR OR MANAG-
ING AGENT THEREOF, PERSONALLY, WITHIN THE STATE, OR (II) IF SUCH OFFICER
CANNOT BE FOUND WITHIN THE STATE BY AFFIXING A COPY THEREOF CONSPICUOUS-
LY ON SUCH PROPERTY BETWEEN THE HOURS OF NINE O'CLOCK IN THE FORENOON
AND FOUR O'CLOCK IN THE AFTERNOON, OR (III) BY REGISTERED OR CERTIFIED
MAIL ADDRESSED TO ITS LAST KNOWN PLACE OF BUSINESS, OR (IV) BY DELIVERY
TO THE SECRETARY OF THE DEPARTMENT OF STATE IN THE SAME MANNER AS
REQUIRED BY SUBPARAGRAPH ONE OF PARAGRAPH (B) OF SECTION THREE HUNDRED
SIX OF THE BUSINESS CORPORATION LAW. FAILURE TO FILE PROOF OF SUCH A
SERVICE WITH THE COUNTY CLERK WITHIN THIRTY-FIVE DAYS AFTER THE NOTICE
OF LIEN IS FILED SHALL TERMINATE THE NOTICE AS A LIEN. UNTIL SERVICE OF
THE NOTICE HAS BEEN MADE, AS ABOVE PROVIDED, AN OWNER, WITHOUT KNOWLEDGE
OF THE LIEN, SHALL BE PROTECTED IN ANY PAYMENT MADE IN GOOD FAITH TO ANY
OTHER PERSON CLAIMING A LIEN.
§ 8. Section 11-b of the lien law, as amended by chapter 147 of the
laws of 1996, is amended to read as follows:
§ 11-b. Copy of notice of MECHANIC'S lien to a contractor or subcon-
tractor. Within five days before or thirty days after filing a notice
of MECHANIC'S lien in accordance with section ten of this chapter or the
S. 7256 6
filing of an amendment of notice of MECHANIC'S lien in accordance with
section twelve-a of this [chapter] ARTICLE the lienor shall serve a copy
of such notice or amendment by certified mail on the contractor, subcon-
tractor, assignee or legal representative for whom he was employed or to
whom he furnished materials or if the lienor is a contractor or subcon-
tractor to the person, firm or corporation with whom the contract was
made. A lienor having a direct contractual relationship with a subcon-
tractor or a sub-subcontractor but not with a contractor shall also
serve a copy of such notice or amendment by certified mail to the
contractor. Failure to file proof of such a service with the county
clerk within thirty-five days after the notice of lien is filed shall
terminate the notice as a lien. Any lienor, or a person acting on behalf
of a lienor, who fails to serve a copy of the notice of MECHANIC'S lien
as required by this section shall be liable for reasonable attorney's
fees, costs and expenses, as determined by the court, incurred in
obtaining such copy.
§ 9. Subdivision 1 of section 12-a of the lien law, as amended by
chapter 1048 of the laws of 1971, is amended to read as follows:
1. Within sixty days after the original filing, a lienor may amend his
lien upon twenty days notice to existing lienors, mortgagees and the
owner, provided that no action or proceeding to enforce or cancel the
mechanics' lien OR EMPLOYEE'S LIEN has been brought in the interim,
where the purpose of the amendment is to reduce the amount of the lien,
except the question of wilful exaggeration shall survive such amendment.
§ 10. Subdivision 1 of section 13 of the lien law, as amended by chap-
ter 878 of the laws of 1947, is amended to read as follows:
(1) [A] AN EMPLOYEE'S LIEN, OR A lien for materials furnished or labor
performed in the improvement of real property, shall have priority over
a conveyance, mortgage, judgment or other claim against such property
not recorded, docketed or filed at the time of the filing of the notice
of such lien, except as hereinafter in this chapter provided; over
advances made upon any mortgage or other encumbrance thereon after such
filing, except as hereinafter in this article provided; and over the
claim of a creditor who has not furnished materials or performed labor
upon such property, if such property has been assigned by the owner by a
general assignment for the benefit of creditors, within thirty days
before the filing of either of such notices; and also over an attachment
hereafter issued or a money judgment hereafter recovered upon a claim,
which, in whole or in part, was not for materials furnished, labor
performed or moneys advanced for the improvement of such real property;
and over any claim or lien acquired in any proceedings upon such judg-
ment. Such liens shall also have priority over advances made upon a
contract by an owner for an improvement of real property which contains
an option to the contractor, his successor or assigns to purchase the
property, if such advances were made after the time when the labor began
or the first item of material was furnished, as stated in the notice of
lien. If several buildings are demolished, erected, altered or repaired,
or several pieces or parcels of real property are improved, under one
contract, and there are conflicting liens thereon, each lienor shall
have priority upon the particular part of the real property or upon the
particular building or premises where his labor is performed or his
materials are used. Persons shall have no priority on account of the
time of filing their respective notices of liens, but all liens shall be
on a parity except as hereinafter in section fifty-six of this chapter
provided; and except that in all cases laborers for daily or weekly
S. 7256 7
wages WITH A MECHANIC'S LIEN, AND EMPLOYEES WITH AN EMPLOYEE'S LIEN,
shall have preference over all other claimants under this article.
§ 11. Section 17 of the lien law, as amended by chapter 324 of the
laws of 2000, is amended to read as follows:
§ 17. Duration of lien. 1. (A) No MECHANIC'S lien specified in this
article shall be a lien for a longer period than one year after the
notice of lien has been filed, unless within that time an action is
commenced to foreclose the lien, and a notice of the pendency of such
action, whether in a court of record or in a court not of record, is
filed with the county clerk of the county in which the notice of lien is
filed, containing the names of the parties to the action, the object of
the action, a brief description of the real property affected thereby,
and the time of filing the notice of lien; or unless an extension to
such lien, except for a lien on real property improved or to be improved
with a single family dwelling, is filed with the county clerk of the
county in which the notice of lien is filed within one year from the
filing of the original notice of lien, continuing such lien and such
lien shall be redocketed as of the date of filing such extension. Such
extension shall contain the names of the lienor and the owner of the
real property against whose interest therein such lien is claimed, a
brief description of the real property affected by such lien, the amount
of such lien, and the date of filing the notice of lien. No lien shall
be continued by such extension for more than one year from the filing
thereof. In the event an action is not commenced to foreclose the lien
within such extended period, such lien shall be extinguished unless an
order be granted by a court of record or a judge or justice thereof,
continuing such lien, and such lien shall be redocketed as of the date
of granting such order and a statement made that such lien is continued
by virtue of such order. A lien on real property improved or to be
improved with a single family dwelling may only be extended by an order
of a court of record, or a judge or justice thereof. No lien shall be
continued by court order for more than one year from the granting there-
of, but a new order and entry may be made in each of two successive
years. If a lienor is made a party defendant in an action to enforce
another lien, and the plaintiff or such defendant has filed a notice of
the pendency of the action within the time prescribed in this section,
the lien of such defendant is thereby continued. Such action shall be
deemed an action to enforce the lien of such defendant lienor. The fail-
ure to file a notice of pendency of action shall not abate the action as
to any person liable for the payment of the debt specified in the notice
of lien, and the action may be prosecuted to judgment against such
person. The provisions of this section in regard to continuing liens
shall apply to liens discharged by deposit or by order on the filing of
an undertaking. Where a lien is discharged by deposit or by order, a
notice of pendency of action shall not be filed.
(B) A lien, the duration of which has been extended by the filing of a
notice of the pendency of an action as above provided, shall neverthe-
less terminate as a lien after such notice has been canceled as provided
in section sixty-five hundred fourteen of the civil practice law and
rules or has ceased to be effective as constructive notice as provided
in section sixty-five hundred thirteen of the civil practice law and
rules.
2. (A) NO EMPLOYEE'S LIEN ON REAL PROPERTY SHALL BE A LIEN FOR A LONG-
ER PERIOD THAN ONE YEAR AFTER THE NOTICE OF LIEN HAS BEEN FILED, UNLESS
AN EXTENSION TO SUCH LIEN IS FILED WITH THE COUNTY CLERK OF THE COUNTY
IN WHICH THE NOTICE OF LIEN IS FILED WITHIN ONE YEAR FROM THE FILING OF
S. 7256 8
THE ORIGINAL NOTICE OF LIEN, CONTINUING SUCH LIEN AND SUCH LIEN SHALL BE
REDOCKETED AS OF THE DATE OF FILING SUCH EXTENSION. SUCH EXTENSION SHALL
CONTAIN THE NAMES OF THE LIENOR AND THE OWNER OF THE REAL PROPERTY
AGAINST WHOSE INTEREST THEREIN SUCH LIEN IS CLAIMED, A BRIEF DESCRIPTION
OF THE PROPERTY AFFECTED BY SUCH LIEN, THE AMOUNT OF SUCH LIEN, AND THE
DATE OF FILING THE NOTICE OF LIEN. NO LIEN SHALL BE CONTINUED BY SUCH
EXTENSION FOR MORE THAN ONE YEAR FROM THE FILING THEREOF. IN THE EVENT
AN ACTION IS NOT COMMENCED TO OBTAIN JUDGMENT ON THE WAGE CLAIM OR TO
FORECLOSE THE LIEN WITHIN SUCH EXTENDED PERIOD, SUCH LIEN SHALL BE AUTO-
MATICALLY EXTINGUISHED UNLESS AN ORDER BE GRANTED BY A COURT OF RECORD
OR A JUDGE OR JUSTICE THEREOF, CONTINUING SUCH LIEN, AND SUCH LIEN SHALL
BE REDOCKETED AS OF THE DATE OF GRANTING SUCH ORDER AND A STATEMENT MADE
THAT SUCH LIEN IS CONTINUED BY VIRTUE OF SUCH ORDER.
(B) NO EMPLOYEE'S LIEN ON PERSONAL PROPERTY SHALL BE A LIEN FOR A
LONGER PERIOD THAN ONE YEAR AFTER THE FINANCING STATEMENT HAS BEEN
RECORDED, UNLESS AN EXTENSION TO SUCH LIEN, IS FILED WITH THE FILING
OFFICE IN WHICH THE FINANCING STATEMENT IS REQUIRED TO BE FILED PURSUANT
TO SECTION 9-501 OF THE UNIFORM COMMERCIAL CODE WITHIN ONE YEAR FROM THE
FILING OF THE ORIGINAL FINANCING STATEMENT, CONTINUING SUCH LIEN. SUCH
EXTENSION SHALL CONTAIN THE NAMES OF THE LIENOR AND THE OWNER OF THE
PROPERTY AGAINST WHOSE INTEREST THEREIN SUCH LIEN IS CLAIMED, A BRIEF
DESCRIPTION OF THE PRIOR FINANCING STATEMENT TO BE EXTENDED, AND THE
DATE OF FILING THE PRIOR FINANCING STATEMENT. NO LIEN SHALL BE CONTIN-
UED BY SUCH EXTENSION FOR MORE THAN ONE YEAR FROM THE FILING THEREOF. IN
THE EVENT AN ACTION IS NOT COMMENCED TO OBTAIN JUDGMENT ON THE WAGE
CLAIM OR TO FORECLOSE THE LIEN WITHIN SUCH EXTENDED PERIOD, SUCH LIEN
SHALL BE AUTOMATICALLY EXTINGUISHED UNLESS AN ORDER BE GRANTED BY A
COURT OF RECORD OR A JUDGE OR JUSTICE THEREOF, CONTINUING SUCH LIEN, AND
SUCH LIEN SHALL BE REFILED AS OF THE DATE OF GRANTING SUCH ORDER AND A
STATEMENT MADE THAT SUCH LIEN IS CONTINUED BY VIRTUE OF SUCH ORDER.
(C) IF A LIENOR IS MADE A PARTY DEFENDANT IN AN ACTION TO ENFORCE
ANOTHER LIEN, AND THE PLAINTIFF OR SUCH DEFENDANT HAS FILED A NOTICE OF
THE PENDENCY OF THE ACTION WITHIN THE TIME PRESCRIBED IN THIS SECTION,
THE LIEN OF SUCH DEFENDANT IS THEREBY CONTINUED. SUCH ACTION SHALL BE
DEEMED AN ACTION TO ENFORCE THE LIEN OF SUCH DEFENDANT LIENOR. THE FAIL-
URE TO FILE A NOTICE OF PENDENCY OF ACTION SHALL NOT ABATE THE ACTION AS
TO ANY PERSON LIABLE FOR THE PAYMENT OF THE DEBT SPECIFIED IN THE NOTICE
OF LIEN, AND THE ACTION MAY BE PROSECUTED TO JUDGMENT AGAINST SUCH
PERSON. THE PROVISIONS OF THIS SECTION IN REGARD TO CONTINUING LIENS
SHALL APPLY TO LIENS DISCHARGED BY DEPOSIT OR BY ORDER ON THE FILING OF
AN UNDERTAKING. WHERE A LIEN IS DISCHARGED BY DEPOSIT OR BY ORDER, A
NOTICE OF PENDENCY OF ACTION SHALL NOT BE FILED.
(D) NOTWITHSTANDING THE FOREGOING, IF A LIENOR COMMENCES A FORECLOSURE
ACTION OR AN ACTION TO OBTAIN A JUDGMENT ON THE WAGE CLAIM WITHIN ONE
YEAR FROM THE FILING OF THE NOTICE OF LIEN ON REAL PROPERTY OR THE
RECORDING OF THE FINANCING STATEMENT CREATING LIEN ON PERSONAL PROPERTY,
THE LIEN SHALL BE EXTENDED DURING THE PENDENCY OF THE ACTION AND FOR ONE
HUNDRED TWENTY DAYS FOLLOWING THE ENTRY OF FINAL JUDGMENT IN SUCH
ACTION, UNLESS THE ACTION RESULTS IN A FINAL JUDGMENT OR ADMINISTRATIVE
ORDER IN THE LIENOR'S FAVOR ON THE WAGE CLAIMS AND THE LIENOR COMMENCES
A FORECLOSURE ACTION, IN WHICH INSTANCE THE LIEN SHALL BE VALID DURING
THE PENDENCY OF THE FORECLOSURE ACTION, PROVIDED, THAT THE LIEN WILL BE
AUTOMATICALLY EXTINGUISHED IF, AFTER A DISMISSAL WITH PREJUDICE OF THE
WAGE CLAIMS ON WHICH IT IS BASED, THE LIENOR FAILS TO FILE A NOTICE OF
APPEAL WITHIN THE PRESCRIBED PERIOD TO FILE A NOTICE OF APPEAL. IF A
LIEN IS EXTENDED DUE TO THE PENDENCY OF A FORECLOSURE ACTION OR AN
S. 7256 9
ACTION TO OBTAIN A JUDGMENT ON THE WAGE CLAIM, THE LIENOR SHALL FILE A
NOTICE OF SUCH PENDENCY AND EXTENSION WITH THE COUNTY CLERK OF THE COUN-
TY IN WHICH THE NOTICE OF LIEN IS FILED, CONTAINING THE NAMES OF THE
PARTIES TO THE ACTION, THE OBJECT OF THE ACTION, A BRIEF DESCRIPTION OF
THE PROPERTY AFFECTED THEREBY, AND THE TIME OF FILING THE NOTICE OF
LIEN, OR IN THE CASE OF A LIEN ON PERSONAL PROPERTY SHALL FILE SUCH
NOTICE WITH THE OFFICE AUTHORIZED TO ACCEPT FINANCING STATEMENTS PURSU-
ANT TO SECTION 9-501 OF THE UNIFORM COMMERCIAL CODE. FOR PURPOSES OF
THIS SECTION, AN ACTION TO OBTAIN JUDGMENT ON A WAGE CLAIM INCLUDES AN
ACTION BROUGHT IN ANY COURT OF COMPETENT JURISDICTION, THE SUBMISSION OF
A COMPLAINT TO THE DEPARTMENT OF LABOR OR THE SUBMISSION OF A CLAIM TO
ARBITRATION PURSUANT TO AN ARBITRATION AGREEMENT. AN ACTION ALSO
INCLUDES AN INVESTIGATION OF WAGE CLAIMS BY THE COMMISSIONER OF LABOR OR
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK, REGARDLESS OF WHETHER
SUCH INVESTIGATION WAS INITIATED BY A COMPLAINT.
(E) A LIEN, THE DURATION OF WHICH HAS BEEN EXTENDED BY THE FILING OF A
NOTICE OF THE PENDENCY OF AN ACTION AS ABOVE PROVIDED, SHALL NEVERTHE-
LESS TERMINATE AS A LIEN AFTER SUCH NOTICE HAS BEEN CANCELED AS PROVIDED
IN SECTION SIXTY-FIVE HUNDRED FOURTEEN OF THE CIVIL PRACTICE LAW AND
RULES OR HAS CEASED TO BE EFFECTIVE AS CONSTRUCTIVE NOTICE AS PROVIDED
IN SECTION SIXTY-FIVE HUNDRED THIRTEEN OF THE CIVIL PRACTICE LAW AND
RULES.
§ 12. Subdivisions 2 and 4 of section 19 of the lien law, subdivision
2 as amended by chapter 310 of the laws of 1962, subdivision 4 as added
by chapter 582 of the laws of 2002 and paragraph a of subdivision 4 as
further amended by section 104 of part A of chapter 62 of the laws of
2011, are amended to read as follows:
(2) By failure to begin an action to foreclose such lien or to secure
an order continuing it, within one year from the time of filing the
notice of lien, unless (I) an action be begun within the same period to
foreclose a mortgage or another mechanic's lien upon the same property
or any part thereof and a notice of pendency of such action is filed
according to law, OR (II) AN ACTION IS COMMENCED TO OBTAIN A JUDGMENT ON
A WAGE CLAIM PURSUANT TO SUBDIVISION TWO OF SECTION SEVENTEEN OF THIS
ARTICLE, but a lien, the duration of which has been extended by the
filing of a notice of the pendency of an action as herein provided,
shall nevertheless terminate as a lien after such notice has been
cancelled or has ceased to be effective as constructive notice.
(4) Either before or after the beginning of an action by the EMPLOYER,
owner or contractor executing a bond or undertaking in an amount equal
to one hundred ten percent of such lien conditioned for the payment of
any judgment which may be rendered against the property OR EMPLOYER for
the enforcement of the lien:
a. The execution of any such bond or undertaking by any fidelity or
surety company authorized by the laws of this state to transact busi-
ness, shall be sufficient; and where a certificate of qualification has
been issued by the superintendent of financial services under the
provisions of section one thousand one hundred eleven of the insurance
law, and has not been revoked, no justification or notice thereof shall
be necessary. Any such company may execute any such bond or undertaking
as surety by the hand of its officers, or attorney, duly authorized
thereto by resolution of its board of directors, a certified copy of
which resolution, under the seal of said company, shall be filed with
each bond or undertaking. Any such bond or undertaking shall be filed
with the clerk of the county in which the notice of lien is filed, and a
copy shall be served upon the adverse party. The undertaking is effec-
S. 7256 10
tive when so served and filed. If a certificate of qualification issued
pursuant to subsections (b), (c) and (d) of section one thousand one
hundred eleven of the insurance law is not filed with the undertaking, a
party may except, to the sufficiency of a surety and by a written notice
of exception served upon the adverse party within ten days after
receipt, a copy of the undertaking. Exceptions deemed by the court to
have been taken unnecessarily, or for vexation or delay, may, upon
notice, be set aside, with costs. Where no exception to sureties is
taken within ten days or where exceptions taken are set aside, the
undertaking shall be allowed.
b. In the case of bonds or undertakings not executed pursuant to para-
graph a of this subdivision, the EMPLOYER, owner or contractor shall
execute an undertaking with two or more sufficient sureties, who shall
be free holders, to the clerk of the county where the premises are situ-
ated. The sureties must together justify in at least double the sum
named in the undertaking. A copy of the undertaking, with notice that
the sureties will justify before the court, or a judge or justice there-
of, at the time and place therein mentioned, must be served upon the
lienor or his attorney, not less than five days before such time. Upon
the approval of the undertaking by the court, judge or justice an order
shall be made by such court, judge or justice discharging such lien.
c. If the lienor cannot be found, or does not appear by attorney,
service under this subsection may be made by leaving a copy of such
undertaking and notice at the lienor's place of residence, or if a
corporation at its principal place of business within the state as stat-
ed in the notice of lien, with a person of suitable age and discretion
therein, or if the house of his abode or its place of business is not
stated in said notice of lien and is not known, then in such manner as
the court may direct. The premises, if any, described in the notice of
lien as the lienor's residence or place of business shall be deemed to
be his said residence or its place of business for the purposes of said
service at the time thereof, unless it is shown affirmatively that the
person servicing the papers or directing the service had knowledge to
the contrary. Notwithstanding the other provisions of this subdivision
relating to service of notice, in any case where the mailing address of
the lienor is outside the state such service may be made by registered
or certified mail, return receipt requested, to such lienor at the mail-
ing address contained in the notice of lien.
d. Except as otherwise provided in this subdivision, the provisions of
article twenty-five of the civil practice law and rules regulating
undertakings is applicable to a bond or undertaking given for the
discharge of a lien on account of private improvements OR OF AN EMPLOY-
EE'S LIEN.
§ 13. Section 24 of the lien law, as amended by chapter 515 of the
laws of 1929, is amended to read as follows:
§ 24. Enforcement of [mechanic's] lien. (1) REAL PROPERTY. The
[mechanics'] liens ON REAL PROPERTY specified in this article may be
enforced against the property specified in the notice of lien and which
is subject thereto and against any person liable for the debt upon which
the lien is founded, as prescribed in article three of this chapter.
(2) PERSONAL PROPERTY. AN EMPLOYEE'S LIEN ON PERSONAL PROPERTY SPECI-
FIED IN THIS ARTICLE MAY IMMEDIATELY BE ENFORCED AGAINST THE PROPERTY
THROUGH A FORECLOSURE AS PRESCRIBED IN ARTICLE NINE OF THE UNIFORM
COMMERCIAL CODE, OR UPON JUDGMENT OBTAINED BY THE EMPLOYEE, COMMISSIONER
OF LABOR OR ATTORNEY GENERAL OF THE STATE OF NEW YORK, MAY BE ENFORCED
S. 7256 11
IN ANY MANNER AVAILABLE TO THE JUDGMENT CREDITOR PURSUANT TO ARTICLE
NINE OF THE UNIFORM COMMERCIAL CODE OR OTHER APPLICABLE LAWS.
§ 14. Section 26 of the lien law, as amended by chapter 373 of the
laws of 1977, is amended to read as follows:
§ 26. Subordination of liens after agreement with owner. In case an
owner of real property shall execute to one or more persons, or a corpo-
ration, as trustee or trustees, a bond and mortgage or a note and mort-
gage affecting such property in whole or in part, or an assignment of
the moneys due or to become due under a contract for a building loan in
relation to such property, and in case such mortgage, if any, shall be
recorded in the office of the register of the county where such real
property is situated, or if such county has no register then in the
office of the clerk of such county, and in case such assignment, if any,
shall be filed in the office of the clerk of the county where such real
property is situated; and in case lienors having [mechanics'] liens
against said real property, notices of which have been filed up to and
not later than fifteen days after the recording of such mortgage or the
filing of such assignment, and which liens have not been discharged as
in this article provided, shall, to the extent of at least fifty-five
per centum of the aggregate amount for which such notices of liens have
been so filed, approve such bond and mortgage or such note and mortgage,
if any, and such assignment, if any, by an instrument or instruments in
writing, duly acknowledged and filed in the office of such county clerk,
then all mechanics' liens for labor performed or material furnished
prior to the recording of such mortgage or filing of such assignment,
whether notices thereof have been theretofore or are thereafter filed
and which have not been discharged as in this article provided, shall be
subordinate to the lien of such trust bond and mortgage or such trust
note and mortgage to the extent of the aggregate amount of all certif-
icates of interest therein issued by such trustee or trustees, or their
successors, for moneys loaned, materials furnished, labor performed and
any other indebtedness incurred after said trust mortgage shall have
been recorded, and for expenses in connection with said trust mortgage,
and shall also be subordinate to the lien of the bond and mortgage or
note and mortgage, given to secure the amount agreed to be advanced
under such contract for a building loan to the extent of the amount
which shall be advanced by the holder of such bond and mortgage or such
note and mortgage to the trustee or trustees, or their successors, under
such assignment. The provisions of this section shall apply to all bonds
and mortgages and notes and mortgages and all assignments of moneys due,
or to become due under building loan contracts executed by such owner,
in like manner, and recorded or filed, from time to time as hereinbefore
provided. In case of an assignment to trustees under the provisions of
this section, the trustees and their successors shall be the agents of
the assignor to receive and receipt for any and all sums advanced by the
holder of the building loan bond and mortgage or the building loan note
and mortgage under the building loan contract and such assignment. No
lienor shall have any priority over the bond and mortgage or note and
mortgage given to secure the money agreed to be advanced under a build-
ing loan contract or over the advances made thereunder, by reason of any
act preceding the making and approval of such assignment.
§ 15. Section 38 of the lien law, as amended by chapter 859 of the
laws of 1930, is amended to read as follows:
§ 38. Itemized statement may be required of lienor. A lienor who has
filed a notice of MECHANIC'S lien shall, on demand in writing, deliver
to the owner or contractor making such demand a statement in writing
S. 7256 12
which shall set forth the items of labor and/or material and the value
thereof which make up the amount for which he claims a lien, and which
shall also set forth the terms of the contract under which such items
were furnished. The statement shall be verified by the lienor or his
agent in the form required for the verification of notices in section
nine of this [chapter] ARTICLE. If the lienor shall fail to comply with
such a demand within five days after the same shall have been made by
the owner or contractor, or if the lienor delivers an insufficient
statement, the person aggrieved may petition the supreme court of this
state or any justice thereof, or the county court of the county where
the premises are situated, or the county judge of such county for an
order directing the lienor within a time specified in the order to
deliver to the petitioner the statement required by this section. Two
days' notice in writing of such application shall be served upon the
lienor. Such service shall be made in the manner provided by law for the
personal service of a summons. The court or a justice or judge thereof
shall hear the parties and upon being satisfied that the lienor has
failed, neglected or refused to comply with the requirements of this
section shall have an appropriate order directing such compliance. In
case the lienor fails to comply with the order so made within the time
specified, then upon five days' notice to the lienor, served in the
manner provided by law for the personal service of a summons, the court
or a justice or judge thereof may make an order cancelling the lien.
§ 16. Section 39 of the lien law, as added by chapter 859 of the laws
of 1930, is amended to read as follows:
§ 39. Lien wilfully exaggerated is void. In any action or proceeding
to enforce a mechanic's lien upon a private or public improvement OR AN
EMPLOYEE'S LIEN, or in which the validity of the lien is an issue, if
the court shall find that a lienor has wilfully exaggerated the amount
for which he claims a lien as stated in his notice of lien, his lien
shall be declared to be void and no recovery shall be had thereon. No
such lienor shall have a right to file any other or further lien for the
same claim. A second or subsequent lien filed in contravention of this
section may be vacated upon application to the court on two days'
notice.
§ 17. Section 39-a of the lien law, as added by chapter 859 of the
laws of 1930, is amended to read as follows:
§ 39-a. Liability of lienor where lien has been declared void on
account of wilful exaggeration. Where in any action or proceeding to
enforce a mechanic's lien upon a private or public improvement OR AN
EMPLOYEE'S LIEN the court shall have declared said lien to be void on
account of wilful exaggeration the person filing such notice of lien
shall be liable in damages to the owner or contractor. The damages which
said owner or contractor shall be entitled to recover, shall include the
amount of any premium for a bond given to obtain the discharge of the
lien or the interest on any money deposited for the purpose of discharg-
ing the lien, reasonable attorney's fees for services in securing the
discharge of the lien, and, IN AN ACTION OR PROCEEDING TO ENFORCE A
MECHANIC'S LIEN, an amount equal to the difference by which the amount
claimed to be due or to become due as stated in the notice of lien
exceeded the amount actually due or to become due thereon.
§ 18. Section 40 of the lien law, as amended by chapter 515 of the
laws of 1929, is amended to read as follows:
§ 40. Construction of article. This article is to be construed in
connection with article two of this chapter, and provides proceedings
for the enforcement of EMPLOYEE'S LIENS ON REAL PROPERTY, AS WELL AS
S. 7256 13
liens for labor performed and materials furnished in the improvement of
real property, created by virtue of such article.
§ 19. Section 41 of the lien law, as amended by chapter 807 of the
laws of 1952, is amended to read as follows:
§ 41. Enforcement of mechanic's OR EMPLOYEE'S lien on real property. A
mechanic's lien OR EMPLOYEE'S LIEN on real property may be enforced
against such property, and against a person liable for the debt upon
which the lien is founded, by an action, by the lienor, his assignee or
legal representative, in the supreme court or in a county court other-
wise having jurisdiction, regardless of the amount of such debt, or in a
court which has jurisdiction in an action founded on a contract for a
sum of money equivalent to the amount of such debt.
§ 20. Section 43 of the lien law, as amended by chapter 310 of the
laws of 1962, is amended to read as follows:
§ 43. Action in a court of record; consolidation of actions. The
provisions of the real property actions and proceedings law relating to
actions for the foreclosure of a mortgage upon real property, and the
sale and the distribution of the proceeds thereof apply to actions in a
court of record, to enforce mechanics' liens AND EMPLOYEES' LIENS on
real property, except as otherwise provided in this article. If actions
are brought by different lienors in a court of record, the court in
which the first action was brought, may, upon its own motion, or upon
the application of any party in any of such actions, consolidate all of
such actions.
§ 21. Section 46 of the lien law, as amended by chapter 515 of the
laws of 1929, is amended to read as follows:
§ 46. Action in a court not of record. If an action to enforce a
mechanic's lien OR EMPLOYEE'S LIEN against real property is brought in a
court not of record, it shall be commenced by the personal service upon
the owner of a summons and complaint verified in the same manner as a
complaint in an action in a court of record. The complaint must set
forth substantially the facts contained in the notice of lien, and the
substance of the agreement under which the labor was performed or the
materials were furnished, OR IF THE LIEN IS BASED UPON A WAGE CLAIM AS
DEFINED IN SECTION TWO OF THIS CHAPTER, THE BASIS FOR SUCH WAGE CLAIM.
The form and contents of the summons shall be the same as provided by
law for the commencement of an action upon a contract in such court. The
summons must be returnable not less than twelve nor more than twenty
days after the date of the summons, or if service is made by publica-
tion, after the day of the last publication of the summons. Service
must be made at least eight days before the return day.
§ 22. Section 50 of the lien law, as amended by chapter 515 of the
laws of 1929, is amended to read as follows:
§ 50. Execution. Execution may be issued upon a judgment obtained in
an action to enforce a mechanic's lien OR AN EMPLOYEE'S LIEN against
real property in a court not of record, which shall direct the officer
to sell the title and interest of the owner in the premises, upon which
the lien set forth in the complaint existed at the time of filing the
notice of lien.
§ 23. Section 53 of the lien law, as amended by chapter 515 of the
laws of 1929, is amended to read as follows:
§ 53. Costs and disbursements. If an action is brought to enforce a
mechanic's lien OR AN EMPLOYEE'S LIEN against real property in a court
of record, the costs and disbursements shall rest in the discretion of
the court, and may be awarded to the prevailing party. The judgment
rendered in such an action shall include the amount of such costs and
S. 7256 14
specify to whom and by whom the costs are to be paid. If such action is
brought in a court not of record, they shall be the same as allowed in
civil actions in such court. The expenses incurred in serving the
summons by publication may be added to the amount of costs now allowed
in such court.
§ 24. Section 59 of the lien law, as amended by chapter 515 of the
laws of 1929, is amended to read as follows:
§ 59. Vacating of a [mechanic's] lien; cancellation of bond; return of
deposit, by order of court. 1. A mechanic's lien notice of which has
been filed on real property or a bond given to discharge the same may be
vacated and cancelled or a deposit made to discharge a lien pursuant to
section twenty OF THIS CHAPTER may be returned, by an order of a court
of record. Before such order shall be granted, a notice shall be served
upon the lienor, either personally or by leaving it as his last known
place of residence, with a person of suitable age, with directions to
deliver it to the lienor. Such notice shall require the lienor to
commence an action to enforce the lien, within a time specified in the
notice, not less than thirty days from the time of service, or show
cause at a special term of a court of record, or at a county court, in a
county in which the property is situated, at a time and place specified
therein, why the notice of lien filed or the bond given should not be
vacated and cancelled, or the deposit returned, as the case may be.
Proof of such service and that the lienor has not commenced the action
to foreclose such lien, as directed in the notice, shall be made by
affidavit, at the time of applying for such order.
2. AN EMPLOYEE'S LIEN NOTICE OF WHICH HAS BEEN FILED ON REAL PROPERTY
OR A BOND GIVEN TO DISCHARGE THE SAME MAY BE VACATED AND CANCELLED OR A
DEPOSIT MADE TO DISCHARGE A LIEN PURSUANT TO SECTION TWENTY OF THIS
CHAPTER MAY BE RETURNED, BY AN ORDER OF A COURT OF RECORD. BEFORE SUCH
ORDER SHALL BE GRANTED, A NOTICE SHALL BE SERVED UPON THE LIENOR, EITHER
PERSONALLY OR BY LEAVING IT AT HIS LAST KNOWN PLACE OF RESIDENCE OR
ATTORNEY'S PLACE OF BUSINESS, WITH A PERSON OF SUITABLE AGE, WITH
DIRECTIONS TO DELIVER IT TO THE LIENOR. SUCH NOTICE SHALL REQUIRE THE
LIENOR TO COMMENCE AN ACTION TO ENFORCE THE LIEN, OR TO COMMENCE AN
ACTION TO OBTAIN JUDGMENT ON THE WAGE CLAIM UPON WHICH THE LIEN WAS
ESTABLISHED, WITHIN A TIME SPECIFIED IN THE NOTICE, NOT LESS THAN THIRTY
DAYS FROM THE TIME OF SERVICE, OR SHOW CAUSE AT A SPECIAL TERM OF A
COURT OF RECORD, OR AT A COUNTY COURT, IN A COUNTY IN WHICH THE PROPERTY
IS SITUATED, AT A TIME AND PLACE SPECIFIED THEREIN, WHY THE NOTICE OF
LIEN FILED OR THE BOND GIVEN SHOULD NOT BE VACATED AND CANCELLED, OR THE
DEPOSIT RETURNED, AS THE CASE MAY BE. PROOF OF SUCH SERVICE AND THAT THE
LIENOR HAS NOT COMMENCED THE ACTION TO FORECLOSE SUCH LIEN OR AN ACTION
TO OBTAIN JUDGMENT ON THE WAGE CLAIM UPON WHICH THE LIEN WAS ESTAB-
LISHED, AS DIRECTED IN THE NOTICE, SHALL BE MADE BY AFFIDAVIT, AT THE
TIME OF APPLYING FOR SUCH ORDER.
§ 25. Section 62 of the lien law, as amended by chapter 697 of the
laws of 1934, is amended to read as follows:
§ 62. Bringing in new parties. A lienor who has filed a notice of lien
after the commencement of an action in a court of record to foreclose or
enforce AN EMPLOYEE'S LIEN OR a mechanic's lien against real property or
a public improvement, may at any time up to and including the day
preceding the day on which the trial of such action is commenced, make
application upon notice to the plaintiff or his attorney in such action,
to be made a party therein. Upon good cause shown, the court must order
such lienor to be brought in by amendment. If the application is made by
any other party in said action to make such lienor or other person a
S. 7256 15
party, the court may in its discretion direct such lienor or other
person to be brought in by like amendment. The order to be entered on
such application shall provide the time for and manner of serving the
pleading of such additional lienor or other person and shall direct that
the pleadings, papers and proceedings of the other several parties in
such action, shall be deemed amended, so as not to require the making or
serving of papers other than said order to effectuate such amendment,
and shall further provide that the allegations in the answer of such
additional lienor or other person shall, for the purposes of the action,
be deemed denied by the other parties therein. The action shall be so
conducted by the court as not to cause substantially any delay in the
trial thereof. The bringing in of such additional lienor or other
person shall be without prejudice to the proceedings had, and if the
action be on the calendar of the court, same shall retain its place on
such calendar without the necessity of serving a new note of issue and
new notices of trial.
§ 26. Subdivision 3 of section 199-a of the labor law, as amended by
chapter 564 of the laws of 2010, is amended to read as follows:
3. Each employee and his or her authorized representative shall be
notified in writing, OF THE TERMINATION OF THE COMMISSIONER'S INVESTI-
GATION OF THE EMPLOYEE'S COMPLAINT AND THE RESULT OF SUCH INVESTIGATION,
of any award and collection of back wages and civil penalties, and of
any intent to seek criminal penalties. In the event that criminal penal-
ties are sought the employee and his or her authorized representative
shall be notified of the outcome of prosecution.
§ 27. Subdivision 2 of section 663 of the labor law, as amended by
chapter 564 of the laws of 2010, is amended to read as follows:
2. By commissioner. On behalf of any employee paid less than the wage
to which the employee is entitled under the provisions of this article,
the commissioner may bring any legal action necessary, including admin-
istrative action, to collect such claim, and the employer shall be
required to pay the full amount of the underpayment, plus costs, and
unless the employer proves a good faith basis to believe that its under-
payment was in compliance with the law, an additional amount as liqui-
dated damages. Liquidated damages shall be calculated by the commission-
er as no more than one hundred percent of the total amount of
underpayments found to be due the employee. In any action brought by the
commissioner in a court of competent jurisdiction, liquidated damages
shall be calculated as an amount equal to one hundred percent of under-
payments found to be due the employee. EACH EMPLOYEE OR HIS OR HER
AUTHORIZED REPRESENTATIVE SHALL BE NOTIFIED IN WRITING OF THE OUTCOME OF
ANY LEGAL ACTION BROUGHT ON THE EMPLOYEE'S BEHALF PURSUANT TO THIS
SECTION.
§ 28. Subdivision 5 of section 6201 of the civil practice law and
rules, as amended by chapter 860 of the laws of 1977 and as renumbered
by chapter 618 of the laws of 1992, is amended and a new subdivision 6
is added to read as follows:
5. the cause of action is based on a judgment, decree or order of a
court of the United States or of any other court which is entitled to
full faith and credit in this state, or on a judgment which qualifies
for recognition under the provisions of article 53[.] OF THIS CHAPTER;
OR
6. THE CAUSE OF ACTION IS BASED ON WAGE CLAIMS. "WAGE CLAIMS," WHEN
USED IN THIS CHAPTER, SHALL INCLUDE ANY CLAIMS OF VIOLATIONS OF ARTICLES
FIVE, SIX, AND NINETEEN OF THE LABOR LAW, SECTION TWO HUNDRED FIFTEEN OF
THE LABOR LAW, AND THE RELATED REGULATIONS OR WAGE ORDERS PROMULGATED BY
S. 7256 16
THE COMMISSIONER OF LABOR, INCLUDING BUT NOT LIMITED TO ANY CLAIMS OF
UNPAID, MINIMUM, OVERTIME, AND SPREAD-OF-HOURS PAY, UNLAWFULLY RETAINED
GRATUITIES, UNLAWFUL DEDUCTIONS FROM WAGES, UNPAID COMMISSIONS, UNPAID
BENEFITS AND WAGE SUPPLEMENTS, AND RETALIATION, AND ANY CLAIMS PURSUANT
TO 18 U.S.C. § 1595, 29 U.S.C. § 201 ET SEQ., AND/OR EMPLOYMENT CONTRACT
AS WELL AS THE CONCOMITANT LIQUIDATED DAMAGES AND PENALTIES AUTHORIZED
PURSUANT TO THE LABOR LAW, THE FAIR LABOR STANDARDS ACT, OR ANY EMPLOY-
MENT CONTRACT.
§ 29. Section 6210 of the civil practice law and rules, as added by
chapter 860 of the laws of 1977, is amended to read as follows:
§ 6210. Order of attachment on notice; temporary restraining order;
contents. Upon a motion on notice for an order of attachment, the court
may, without notice to the defendant, grant a temporary restraining
order prohibiting the transfer of assets by a garnishee as provided in
subdivision (b) of section 6214. WHEN ATTACHMENT IS SOUGHT PURSUANT TO
SUBDIVISION SIX OF SECTION 6201, AND IF THE EMPLOYER CONTESTS THE
MOTION, THE COURT SHALL HOLD A HEARING WITHIN TEN DAYS OF WHEN THE
EMPLOYER'S RESPONSE TO PLAINTIFFS' MOTION FOR ATTACHMENT IS DUE. The
contents of the order of attachment granted pursuant to this section
shall be as provided in subdivision (a) of section 6211.
§ 30. Subdivision (b) of section 6211 of the civil practice law and
rules, as amended by chapter 566 of the laws of 1985, is amended to read
as follows:
(b) Confirmation of order. Except where an order of attachment is
granted on the ground specified in subdivision one OR SIX of section
6201, an order of attachment granted without notice shall provide that
within a period not to exceed five days after levy, the plaintiff shall
move, on such notice as the court shall direct to the defendant, the
garnishee, if any, and the sheriff, for an order confirming the order of
attachment. Where an order of attachment without notice is granted on
the ground specified in subdivision one OR SIX of section 6201, the
court shall direct that the statement required by section 6219 be served
within five days, that a copy thereof be served upon the plaintiff, and
the plaintiff shall move within ten days after levy for an order
confirming the order of attachment. If the plaintiff upon such motion
shall show that the statement has not been served and that the plaintiff
will be unable to satisfy the requirement of subdivision (b) of section
6223 until the statement has been served, the court may grant one exten-
sion of the time to move for confirmation for a period not to exceed ten
days. If plaintiff fails to make such motion within the required period,
the order of attachment and any levy thereunder shall have no further
effect and shall be vacated upon motion. Upon the motion to confirm, the
provisions of subdivision (b) of section 6223 shall apply. An order of
attachment granted without notice may provide that the sheriff refrain
from taking any property levied upon into his actual custody, pending
further order of the court.
§ 31. Subdivisions (b) and (e) of rule 6212 of the civil practice law
and rules, subdivision (b) as separately amended by chapters 15 and 860
of the laws of 1977 and subdivision (e) as added by chapter 860 of the
laws of 1977, are amended to read as follows:
(b) Undertaking. [On] 1. EXCEPT WHERE AN ORDER OF ATTACHMENT IS SOUGHT
ON THE GROUND SPECIFIED IN SUBDIVISION SIX OF SECTION 6201, ON a motion
for an order of attachment, the plaintiff shall give an undertaking, in
a total amount fixed by the court, but not less than five hundred
dollars, a specified part thereof conditioned that the plaintiff shall
pay to the defendant all costs and damages, including reasonable attor-
S. 7256 17
ney's fees, which may be sustained by reason of the attachment if the
defendant recovers judgment or if it is finally decided that the plain-
tiff was not entitled to an attachment of the defendant's property, and
the balance conditioned that the plaintiff shall pay to the sheriff all
of his allowable fees.
2. ON A MOTION FOR AN ATTACHMENT PURSUANT TO SUBDIVISION SIX OF
SECTION 6201, THE COURT SHALL ORDER THAT THE PLAINTIFF GIVE AN ACCESSI-
BLE UNDERTAKING OF NO MORE THAN FIVE HUNDRED DOLLARS, OR IN THE ALTERNA-
TIVE, MAY WAIVE THE UNDERTAKING ALTOGETHER. The attorney for the plain-
tiff shall not be liable to the sheriff for such fees. The surety on the
undertaking shall not be discharged except upon notice to the sheriff.
(e) Damages. [The] EXCEPT WHERE AN ORDER OF ATTACHMENT IS SOUGHT ON
THE GROUND SPECIFIED IN SUBDIVISION SIX OF SECTION 6201, THE plaintiff
shall be liable to the defendant for all costs and damages, including
reasonable attorney's fees, which may be sustained by reason of the
attachment if the defendant recovers judgment, or if it is finally
decided that the plaintiff was not entitled to an attachment of the
defendant's property. Plaintiff's liability shall not be limited by the
amount of the undertaking.
§ 32. Paragraph (b) of section 624 of the business corporation law, as
amended by chapter 449 of the laws of 1997, is amended to read as
follows:
(b) Any person who shall have been a shareholder of record of a corpo-
ration, OR WHO IS OR SHALL HAVE BEEN A LABORER, SERVANT OR EMPLOYEE,
upon at least five days' written demand shall have the right to examine
in person or by agent or attorney, during usual business hours, its
minutes of the proceedings of its shareholders and record of sharehold-
ers and to make extracts therefrom for any purpose reasonably related to
such person's interest as a shareholder, LABORER, SERVANT OR EMPLOYEE,
PROVIDED THE PURPOSE REASONABLY RELATED TO A PERSON'S INTEREST AS A
LABORER, SERVANT OR EMPLOYEE SHALL BE TO OBTAIN THE NAMES, ADDRESSES,
AND VALUE OF SHAREHOLDERS' INTERESTS IN THE CORPORATION. Holders of
voting trust certificates representing shares of the corporation shall
be regarded as shareholders for the purpose of this section. Any such
agent or attorney shall be authorized in a writing that satisfies the
requirements of a writing under paragraph (b) of section 609 (Proxies).
A corporation requested to provide information pursuant to this para-
graph shall make available such information in written form and in any
other format in which such information is maintained by the corporation
and shall not be required to provide such information in any other
format. If a request made pursuant to this paragraph includes a request
to furnish information regarding beneficial owners, the corporation
shall make available such information in its possession regarding bene-
ficial owners as is provided to the corporation by a registered broker
or dealer or a bank, association or other entity that exercises fiduci-
ary powers in connection with the forwarding of information to such
owners. The corporation shall not be required to obtain information
about beneficial owners not in its possession.
§ 33. Section 630 of the business corporation law, paragraph (a) as
amended by chapter 5 of the laws of 2016, paragraph (c) as amended by
chapter 746 of the laws of 1963, is amended to read as follows:
§ 630. Liability of shareholders for wages due to laborers, servants or
employees.
(a) The ten largest shareholders, as determined by the fair value of
their beneficial interest as of the beginning of the period during which
the unpaid services referred to in this section are performed, of every
S. 7256 18
domestic corporation or of any foreign corporation, when the unpaid
services were performed in the state, no shares of which are listed on a
national securities exchange or regularly quoted in an over-the-counter
market by one or more members of a national or an affiliated securities
association, shall jointly and severally be personally liable for all
debts, wages or salaries due and owing to any of its laborers, servants
or employees other than contractors, for services performed by them for
such corporation. [Before such laborer, servant or employee shall charge
such shareholder for such services, he shall give notice in writing to
such shareholder that he intends to hold him liable under this section.
Such notice shall be given within one hundred and eighty days after
termination of such services, except that if, within such period, the
laborer, servant or employee demands an examination of the record of
shareholders under paragraph (b) of section 624 (Books and records;
right of inspection, prima facie evidence) of this article, such notice
may be given within sixty days after he has been given the opportunity
to examine the record of shareholders. An action to enforce such liabil-
ity shall be commenced within ninety days after the return of an
execution unsatisfied against the corporation upon a judgment recovered
against it for such services.] The provisions of this paragraph shall
not apply to an investment company registered as such under an act of
congress entitled "Investment Company Act of 1940."
(b) For the purposes of this section, wages or salaries shall mean all
compensation and benefits payable by an employer to or for the account
of the employee for personal services rendered by such employee INCLUD-
ING ANY CONCOMITANT LIQUIDATED DAMAGES, PENALTIES, INTEREST, ATTORNEY'S
FEES OR COSTS. These shall specifically include but not be limited to
salaries, overtime, vacation, holiday and severance pay; employer
contributions to or payments of insurance or welfare benefits; employer
contributions to pension or annuity funds; and any other moneys properly
due or payable for services rendered by such employee.
(c) A shareholder who has paid more than his pro rata share under this
section shall be entitled to contribution pro rata from the other share-
holders liable under this section with respect to the excess so paid,
over and above his pro rata share, and may sue them jointly or severally
or any number of them to recover the amount due from them. Such recov-
ery may be had in a separate action. As used in this paragraph, "pro
rata" means in proportion to beneficial share interest. Before a share-
holder may claim contribution from other shareholders under this para-
graph, he shall[, unless they have been given notice by a laborer, serv-
ant or employee under paragraph (a),] give them notice in writing that
he intends to hold them so liable to him. Such notice shall be given by
him within twenty days after the date that [notice was given to him by]
HE BECAME AWARE THAT a laborer, servant or employee MAY SEEK TO HOLD HIM
LIABLE under paragraph (a).
§ 34. Subdivision (c) of section 609 of the limited liability company
law, as amended by chapter 620 of the laws of 2019, is amended to read
as follows:
(c) Notwithstanding the provisions of subdivisions (a) and (b) of this
section, the ten members with the largest percentage ownership interest,
as determined as of the beginning of the period during which the unpaid
services referred to in this section are performed, of every domestic
limited liability company, or of any foreign limited liability company,
when the unpaid services were performed in the state, shall jointly and
severally be personally liable for all debts, wages or salaries due and
owing to any of its laborers, servants or employees, for services
S. 7256 19
performed by them for such limited liability company. [Before such
laborer, servant or employee shall charge such member for such services,
he or she shall give notice in writing to such member that he or she
intends to hold such member liable under this section. Such notice shall
be given within one hundred eighty days after termination of such
services. An action to enforce such liability shall be commenced within
ninety days after the return of an execution unsatisfied against the
limited liability company upon a judgment recovered against it for such
services.] A member who has paid more than his or her pro rata share
under this section shall be entitled to contribution pro rata from the
other members liable under this section with respect to the excess so
paid, over and above his or her pro rata share, and may sue them jointly
or severally or any number of them to recover the amount due from them.
Such recovery may be had in a separate action. As used in this subdivi-
sion, "pro rata" means in proportion to percentage ownership interest.
Before a member may claim contribution from other members under this
section, he or she shall give them notice in writing that he or she
intends to hold them so liable to him or her.
§ 35. Section 1102 of the limited liability company law is amended by
adding a new subdivision (e) to read as follows:
(E) ANY PERSON WHO IS OR SHALL HAVE BEEN A LABORER, SERVANT OR EMPLOY-
EE OF A LIMITED LIABILITY COMPANY, UPON AT LEAST FIVE DAYS' WRITTEN
DEMAND SHALL HAVE THE RIGHT TO EXAMINE IN PERSON OR BY AGENT OR ATTOR-
NEY, DURING USUAL BUSINESS HOURS, RECORDS DESCRIBED IN PARAGRAPH TWO OF
SUBDIVISION (A) OF THIS SECTION THROUGHOUT THE PERIOD OF TIME DURING
WHICH SUCH LABORER, SERVANT OR EMPLOYEE PROVIDED SERVICES TO SUCH COMPA-
NY. A COMPANY REQUESTED TO PROVIDE INFORMATION PURSUANT TO THIS PARA-
GRAPH SHALL MAKE AVAILABLE SUCH RECORDS IN WRITTEN FORM AND IN ANY OTHER
FORMAT IN WHICH SUCH INFORMATION IS MAINTAINED BY THE COMPANY AND SHALL
NOT BE REQUIRED TO PROVIDE SUCH INFORMATION IN ANY OTHER FORMAT. UPON
REFUSAL BY THE COMPANY OR BY AN OFFICER OR AGENT OF THE COMPANY TO
PERMIT AN INSPECTION OF THE RECORDS DESCRIBED IN THIS PARAGRAPH, THE
PERSON MAKING THE DEMAND FOR INSPECTION MAY APPLY TO THE SUPREME COURT
IN THE JUDICIAL DISTRICT WHERE THE OFFICE OF THE COMPANY IS LOCATED,
UPON SUCH NOTICE AS THE COURT MAY DIRECT, FOR AN ORDER DIRECTING THE
COMPANY, ITS MEMBERS OR MANAGERS TO SHOW CAUSE WHY AN ORDER SHOULD NOT
BE GRANTED PERMITTING SUCH INSPECTION BY THE APPLICANT. UPON THE RETURN
DAY OF THE ORDER TO SHOW CAUSE, THE COURT SHALL HEAR THE PARTIES SUMMAR-
ILY, BY AFFIDAVIT OR OTHERWISE, AND IF IT APPEARS THAT THE APPLICANT IS
QUALIFIED AND ENTITLED TO SUCH INSPECTION, THE COURT SHALL GRANT AN
ORDER COMPELLING SUCH INSPECTION AND AWARDING SUCH FURTHER RELIEF AS TO
THE COURT MAY SEEM JUST AND PROPER. IF THE APPLICANT IS FOUND TO BE
QUALIFIED AND ENTITLED TO SUCH INSPECTION, THE COMPANY SHALL PAY ALL
REASONABLE ATTORNEY'S FEES AND COSTS OF SAID APPLICANT RELATED TO THE
DEMAND FOR INSPECTION OF THE RECORDS.
§ 36. This act shall take effect on the thirtieth day after it shall
have become a law; provided, however that section thirty-four of this
act shall take effect on the same date and in the same manner as section
1 of chapter 620 of the laws of 2019, takes effect. The procedures and
rights created in this act may be used by employees, laborers or serv-
ants in connection with claims for liabilities that arose prior to the
effective date.
