New York Bond Claim (Little Miller Act) Overview

It’s easy to file and manage your New York bond claims with zlien, the industry’s only all-in-one bond claim and security rights management platform. Get complete control over your bond claim rights on a state, county, or municipal project, by using intelligent technology. To learn more about New York’s bond claim laws and requirements, read the frequently asked questions below.

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New York

Preliminary Notice Deadlines
None / not applicable.

New York

Bond Claim Deadlines
None / not applicable.

New York

Preliminary Notice Deadlines
None / not applicable.

New York

Bond Claim Deadlines
120 Days

A bond claim must be filed within 120 days of last furnishing. A public claim of lien must be filed within 30 days after completion and acceptance of the public improvement. Suit to foreclose the claim must be filed within 1 year from the filing of the public claim.

New York

Preliminary Notice Deadlines
None / not applicable.

New York

Bond Claim Deadlines
120 Days

A bond claim must be filed within 120 days of last furnishing. A public claim of lien must be filed within 30 days after completion and acceptance of the public improvement. Suit to foreclose the claim must be filed within 1 year from the filing of the public claim.

New York Bond Claim (Little Miller Act) FAQs

New York Bond Claim FAQs

Who Is Protected under New York Bond Claim Laws?

In New York, subcontractors, sub-subs, laborers, and material suppliers to the general contractor or 1st tier subs. Generally, suppliers to suppliers are not protected, but some case law holds that if the bond’s coverage is not explicitly limited to suppliers contractors or subcontractors a supplier to a supplier may be covered by the bond – but still do not have any right against funds held by the state.

When is the Deadline to File a New York Bond Claim?

Lien on Money Due: Any time before project is done, or within 30 days.

Bond Claim: Within 120 days of last furnishing

School Project: Within 3 months after the accrual of claim (3 months after payment for amount claim was denied).

Who Should Receive the New York Bond Claim?

Lien on Money Due: The lien claim must be given to the head of the department or bureau in charge of project; Comptroller of state or other financial officer or person in charge of custody and disbursement of funds for project; Contractor and sub, as necessary (party with whom supplier has a contract, as well as contractor, if contract is with sub.) The copy served on the contractor and subcontractor must be served at the same time as it is given to the public entity, or within 5 days previously. Proof of service is required.

Bond: The only party specifically required to receive the bond claim is the general contractor, however, it is likely advisable to send notice of the bond claim to the surety, as well.

School Project: The governing body of the school or school district.

When is the Deadline to Initiate Suit, or, How Long is My New York Bond Claim Effective?

Lien on Money Due: Within one year from the date of filing the claim, unless an extension is filed within that time period with the comptroller of the state or the financial officer of the public corporation with whom the claim was filed. An extension may be filed in each of 2 successive years.

Bond Claim: A bond claim must be filed more than 90 days after the date of last furnishing labor and/or materials to the project, but within 1 year of the date on which the project was completed and accepted by the public entity. It may be possible for the language of the bond itself to shorten the time in which an action to enforce must be initiated if the shorter time is reasonable.

School Project: More than 30 days after presentation of the claim, but less than one year after the cause of action arose.

What Must the New York Bond Claim Include?

Money Due: A lien on the money due must include 1)Name and residence or business address of claimant; 2) Name of contractor or sub for whom work or materi­als furnished; 3) Amount due or to become due; 4) Date payment due; 5) Description of project 6) Kind of labor and/or materials furnished; 7) General description of contract for project; 8) Names of partners, if claimant is a partnership, and if claimant is a foreign corporation, give its principal place of business in the state; 9) Verification by the claimant or the claimant’s agent.

Bond: A bond claim must include: 1) Amount claimed; 2) Hiring Party; 3) Statement that the notice is a notice of claim under the bond; 4) Work done; 5) Job address; 6) any other relevant information may be included.

School Project: Written verified claim upon which the action or proceeding is founded.

What Are the Lien Waiver Rules?

New York does not have statutory lien waiver forms, and therefore, you can use any lien waiver forms. Since lien waivers are unregulated, be careful when reviewing and signing lien waivers. See this article: Should You Sign That Lien Waiver?.

Also, New York state law prohibits contractors and suppliers from waiving their right to file a mechanics lien in contract. You can learn more about the prohibition of such “no lien clauses” at this article: Where Can You Waive Your Lien Rights Before Payment?

Can Suppliers to Suppliers File Bond Claims?

Maybe. Suppliers to suppliers may be able to file a bond claim in New York. The law is not clear.

How Must the New York Bond Claim Be Sent?

Money Due: File with public body, and within 5 days before or simultaneously with the filing, must serve contractor and sub by certified mail. Lien filed must include or be accompanied by proof of service on contracting parties. Failure to do so invalidates lien.

Bond: Personal service or registered mail to business or residence. If notice actually received by other means, such notice is sufficient. (The burden of proving actual receipt, however, is on the claimant.) Actual receipt is essential.

School Project: Must be presented to the governing body.

New York Public Project Preliminary Notice FAQs

Do I Need to Send a New York Preliminary Notice?

No. New York is a non-notice state, meaning that parties to a construction project are generally not required to deliver any preliminary notice to preserve rights. Any party may send notice if they so desire.

When do I Need to Send a New York Preliminary Notice?

N/A

What if I Send the New York Preliminary Notice Late?

N/A

How Should the New York Preliminary Notice be Sent?

N/A

To Whom Must the New York Preliminary Notice be Given?

N/A

New York Bond Claim (Little Miller Act) Statutes

When you perform work on a state construction project in New York, and are not paid, you can file a “lien” against the project pursuant to New York’s Little Miller Act. Since the claim is not against the state or county’s actual property, but instead against a posted bond, the claim is not really called a “lien” but is more frequently referred to as a “bond claim” or “little miller act claim.”

New York’s Little Miller Act is found in New York Consolidated Laws, Article 9, Section 137, and is reproduced below.

New York Little Miller Act

§ 137. Bond to secure payment of certain claims arising from a public improvement; enforcement.

1. In addition to other bond or bonds, if any, required by law for the completion of a work specified in a contract for the prosecution of a public improvement for the state of New York, a municipal corporation, a public benefit corporation or a commission appointed pursuant to law, or in the absence of any such requirement, the comptroller may or the other appropriate official, respectively, shall nevertheless require prior to the approval of any such contract a bond guaranteeing prompt payment of moneys due to all persons furnishing labor or materials to the contractor or any subcontractors in the prosecution of the work provided for in such contract. Whenever a municipal corporation issues a permit subject to compliance with section two hundred twenty of the labor law, such permittee or its contractor or subcontractors furnishing workers shall post a payment bond subject to this section. Provided, however, that all performance bonds and payment bonds may, at the discretion of the head of the state agency, public benefit corporation or commission, or his or her designee, be dispensed with for the completion of a work specified in a contract for the prosecution of a public improvement for the state of New York for which bids are solicited where the aggregate amount of the contract is under one hundred thousand dollars and provided further, that in a case where the contract is not subject to the multiple contract award requirements of section one hundred thirty-five of this article, such requirements may be dispensed with where the head of the state agency, public benefit corporation or commission finds it to be in the public interest and where the aggregate amount of the contract awarded or to be awarded is less than two hundred thousand dollars. Provided further, that in a case where a performance or payment bond is dispensed with, twenty per centum may be retained from each progress payment or estimate until the entire contract work has been completed and accepted, at which time the head of the state agency, public benefit corporation or commission shall, pending the payment of the final estimate, pay not to exceed seventy-five per centum of the amount of the retained percentage.

2. A copy of such payment bond shall be kept in the office of the head of the department or bureau having charge of the public improvement in connection with which the bond was given and a copy shall also be kept in the office of the comptroller or other appropriate official; such copies shall be open to public inspection.

3. Every person who has furnished labor or material, to the contractor or to a subcontractor of the contractor, in the prosecution of the work provided for in the contract and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was performed or material was furnished by him for which the claim is made, shall have the right to sue on such payment bond in his own name for the amount, or the balance thereof, unpaid at the time of commencement of the action; provided, however, that a person having a direct contractual relationship with a subcontractor of the contractor furnishing the payment bond but no contractual relationship express or implied with such contractor shall not have a right of action upon the bond unless he shall have given written notice to such contractor within one hundred twenty days from the date on which the last of the labor was performed or the last of the material was furnished, for which his claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or for whom the labor was performed. The notice shall be served by delivering the same personally to the contractor or by mailing the same by registered mail, postage prepaid, in an envelope addressed to the contractor at any place where he maintains an office or conducts his business or at his residence; provided, however, that where such notice is actually received by the contractor by other means, such notice shall be deemed sufficient.

4. (a) A payment bond required pursuant to this section may provide that the place of trial of an action on the bond shall be in the county in which the contract of the contractor who furnished the bond was to be performed or if such contract was to be performed in more than one county, then in any such county, and not elsewhere.

(b) Except as provided in section two hundred twenty-g of the labor law, no action on a payment bond furnished pursuant to this section shall be commenced after the expiration of one year from the date on which the public improvement has been completed and accepted by the public owner.

(c) In any action on a payment bond furnished pursuant to this section, any judgment in favor of a subcontractor or material supplier may include provision for the payment of interest upon the amount recovered from the date when demand for payment was made pursuant to the labor and material payment bond and provided further that the court may determine and award reasonable attorney’s fee to either party to such action when, upon reviewing the entire record, it appears that either the original claim or the defense interposed to such claim is without substantial basis in fact or law.

5. (a) The expression “furnishes material” or other similar expression wherever used in this section shall be deemed to include the reasonable rental value for the period of actual use of machinery, tools or equipment, and the value of compressed gases furnished for welding or cutting, and the value of fuel and lubricants consumed by machinery operating on the improvement, or by motor vehicles owned, operated or controlled by the contractor or his subcontractors while engaged exclusively in the transportation of materials to or from the improvement for the purposes thereof.

(b) The expression “moneys due to persons furnishing labor to the contractor or his subcontractors” includes all sums payable to or on behalf of persons furnishing labor to the contractor or his subcontractors, for wages, health, welfare, non-occupational disability, retirement, vacation benefits, holiday pay, life insurance or other benefits, payment of which is required pursuant to the labor law or by the contract in connection with which the bond is furnished or by a collective bargaining agreement between organized labor and the contractor or subcontractor, and which are computed upon labor performed in the prosecution of the contract. A trustee or other person authorized to collect such payments shall have the right to sue on the payment bond in his own name and subject to the same conditions as if he were the person performing the labor upon which such sums are computed.