New York’s Construction Lien § 11 requires mechanics lien claimants serve a copy of the mechanics lien upon the property owner within “five days before or thirty days after” filing. This post will guide you on the acceptable ways to serve a New York mechanics lien and the often overlooked requirement of filing your affidavit of service with the recorder.
Acceptable Ways To Serve A New York Mechanics Lien
Lien Law § 11 approves the following as methods of serving the property owner with a copy of the mechanics lien claim:
[I]f 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 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;[I]f the owner 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 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 registered or certified mail addressed to its last known place of business.
Not much commentary is required here as the Lien Law’s § 11 is pretty straight forward in explaining how service can be accomplished on the property owner. The only comment I’ll make is that the statute uses the terms “natural person” and “corporation,” but does not explicitly designate how non-corporation entities must be served (i.e. partnerships, limited liability companies, etc.).
A safe practice is to serve all entities according to the “corporation” requirement, and to serve all people according to the “natural person” requirements.
Don’t Forget To Record Your Affidavit of Service
Every time you serve anything (even a preliminary notice), it’s a good practice to draft and save an “affidavit of service” just so you have a formal record of when the item was served, how it was served and where it was served. However, these affidavits and proofs of service are not always required, and they certainly are not always required to be filed.
Such is not the case in New York, where you are required to draft and execute an Affidavit of Service and to file it with the county recorder in order to properly file your mechanics lien. As indicated in Lien Law § 11, “[f]ailure 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.”
If you file your mechanics lien and serve your mechanics lien and even execute an affidavit of service, your mechanics lien will still be dismissed as invalid if you fail to record that affidavit with the county clerk within the timeframe. Recording the affidavit with the county clerk, therefore, is very important.
The term “proof of service” is not defined in the statute, but it’s a good practice to sign a document that:
- States what was served (the Notice of Claim of Lien)
- The method of service
- When service was accomplished
- Who served the document
- Is Sworn to under oath
- Is Notarized
An example Affidavit of Service is included with Levelset’s free New York Private Mechanics Lien form, which you can download with the following links: