Prior to 1996, the New York Lien Law provided that a mechanic’s lien had to be filed within 30 days after it was filed with the county clerk’s office. Recognizing that many lienors wished to serve their lien the same day, or even a few days before filing (so that they could file their proof of service at the same time the lien was filed), the legislature amended section 11 of the Lien Law in 1996 to provide that the lien must be served: “Within five days before or thirty days after filing the notice of lien….”

But what if one serves the lien more than five days before one files the lien? Is it still enforceable? Or is it automatically void as premature?

In a recent case in the Supreme Court of New York County, a steel detailer served a mechanic’s lien for $62,755. Ten days later it filed the lien. The owner and general contractor each moved to dismiss the lien as invalid for having been served more than five days before it was filed.

The court reviewed the legislative history and determined that the early filing did not prejudice the owner or general contractor. It held that the amendment of the Lien Law was intended to ensure that owners get timely notice of a lien. Here, the owner got even more notice than the statute required. The court was unwilling to penalize the subcontractor for giving “better notice” than was mandated by the statute. The only prior case which had stricken a premature lien was under the pre-1996 statute and so was held not to be controlling.

One wonders whether there is a point at which notice can be too premature. And if the courts are now free to examine the prejudice to the owner in evaluating the timeliness of service, what happens if the lien is served one day too late? Must the owner now allege prejudice to have the lien dismissed? 

The court’s desire to protect the early bird may have opened up a whole can of worms.

Read more articles authored by attorneys in our Construction Law Practice or continue browsing the Construction Law Blog.

Further information on mechanic's liens can be found on our blog: 
Liening for Pre-Construction Services? Yes and No.
Another Mechanic's Lien Bites the Dust
Better Early Than Never: Can You File a Mechanic's Lien too Soon?
What Can You Lien For? And What Not?
You Must Renew a Bonded Lien, Or Else
Willful Exaggeration of a Mechanic's Lien - Only Established at Trial
Filing a Mechanic's Lien. Again. And Again.