NY-LIE Lien Law NY

Short title. This chapter shall be known as the "lien law."

Definitions. 1. Lienor. The term "lienor," when used in this

chapter, means any person having a lien upon property by virtue of its

provisions, and includes his successor in interest.

2. Real property. The term "real property," when used in this chapter,

includes real estate, lands, tenements and hereditaments, corporeal and

incorporeal, fixtures, and all bridges and trestle work, and structures

connected therewith, erected for the use of railroads, and all oil or

gas wells and structures and fixtures connected therewith, and any lease

of oil lands or other right to operate for the production of oil or gas

upon such lands, and the right of franchise granted by a public

corporation for the use of the streets or public places thereof, and all

structures placed thereon for the use of such right or franchise.

3. Owner. The term "owner," when used in this chapter, includes the

owner in fee of real property, or of a less estate therein, a lessee for

a term of years, a vendee in possession under a contract for the

purchase of such real property, and all persons having any right, title

or interest in such real property, which may be sold under an execution

in pursuance of the provisions of statutes relating to the enforcement

of liens of judgment, and all persons having any right or franchise

granted by a public corporation to use the streets and public places

thereof, and any right, title or interest in and to such franchise. The

purchaser of real property at a statutory or judicial sale shall be

deemed the owner thereof from the time of such sale. If the purchaser at

such sale fails to complete the purchase, pursuant to the terms of the

sale, all liens created by his consent after such sale shall be a lien

on any deposit made by him and not on the real property sold.

4. Improvement. The term "improvement," when used in this chapter,

includes the demolition, erection, alteration or repair of any structure

upon, connected with, or beneath the surface of, any real property and

any work done upon such property or materials furnished for its

permanent improvement, and shall also include any work done or materials

furnished in equipping any such structure with any chandeliers, brackets

or other fixtures or apparatus for supplying gas or electric light and

shall also include the drawing by any architect or engineer or surveyor,

of any plans or specifications or survey, which are prepared for or used

in connection with such improvement and shall also include the value of

materials actually manufactured for but not delivered to the real

property, and shall also include the reasonable rental value for the

period of actual use of machinery, tools and equipment and the value of

compressed gases furnished for welding or cutting in connection with the

demolition, erection, alteration or repair of any real property, and the

value of fuel and lubricants consumed by machinery operating on the

improvement, or by motor vehicles owned, operated or controlled by the

owner, or a contractor or subcontractor while engaged exclusively in the

transportation of materials to or from the improvement for the purposes

thereof and shall also include the performance of real estate brokerage

services in obtaining a lessee for a term of more than three years of

all or any part of real property to be used for other than residential

purposes pursuant to a written contract of brokerage employment or

compensation.

5. Cost of improvement. The term "cost of improvement," when used in

this chapter, means expenditures incurred by the owner in paying the

claims of a contractor, an architect, engineer or surveyor, a

subcontractor, laborer and materialman, arising out of the improvement,

and in paying the amount of taxes based on payrolls including such

persons and withheld or required to be withheld and taxes based on the

purchase price or value of materials or equipment required to be

installed or furnished in connection with the performance of the

improvement, payment of taxes and unemployment insurance and other

contributions due by reason of the employment out of which any such

claim arose, and payment of any benefits or wage supplements or the

amounts necessary to provide such benefits or furnish such supplements,

to the extent that the owner, as employer, is obligated to pay or

provide such benefits or furnish such supplements by any agreement to

which he is a party, and shall also include fair and reasonable sums

paid for obtaining building loan and subsequent financing, premiums on

bond or bonds filed pursuant to section thirty-seven of this chapter or

required by any such building loan contract or by any lease to be

mortgaged pursuant thereto, or required by any mortgage to be

subordinated to the building loan mortgage, premiums on bond or bonds

filed to discharge liens, sums paid to take by assignment prior existing

mortgages, which are consolidated with building loan mortgages and also

the interest charges on such mortgages, sums paid to discharge or reduce

the indebtedness under mortgages and accrued interest thereon and other

encumbrances upon real estate existing prior to the time when the lien

provided for in this chapter may attach, sums paid to discharge building

loan mortgages whenever recorded, taxes, assessments and water rents

existing prior to the commencement of the improvement, and also those

accruing during the making of the improvement, and interest on building

loan mortgages, ground rent and premiums on insurance likewise accruing

during the making of the improvement. The application of the proceeds of

any building loan mortgage or other mortgage to reimburse the owner for

any payments made for any of the above mentioned items for said

improvement prior to the date of the initial advance received under the

building loan mortgage or other mortgage shall be deemed to be an

expenditure within the "cost of improvement" as above defined; provided,

however, such payments are itemized in the building loan contract and/or

other mortgage other than a building loan mortgage, and provided

further, that the payments have been made subsequent to the commencement

of the improvement.

5-a. Benefits and wage supplements. The term "benefits and wage

supplements" as used in this chapter means all remuneration for

employment paid in any medium other than cash, or reimbursement for

expenses, or any payments which are not "wages" within the meaning of

the law, including, but not limited to, health, welfare,

non-occupational disability, retirement, vacation benefits, holiday pay

and life insurance.

6. Public corporation. The term "public corporation," when used in

this chapter, means a municipal corporation or a district corporation or

a public benefit corporation as such corporations are defined in section

three of the general corporation law.

7. Public improvement. The term "public improvement," when used in

this chapter, means an improvement of any real property belonging to the

state or a public corporation; however, if the beneficial interest of an

improvement is in an entity other than the state or a public corporation

notwithstanding legal title being vested in an industrial development

agency created under article eighteen-A of the general municipal law,

then such improvement shall be considered an improvement of real

property subject to mechanics' liens on real property as provided in

section three of this chapter. Nothing contained in this section shall

create or be deemed to create any liability upon any industrial

development agency for the payment of the cost of any improvement, or

otherwise. For the purposes of this subdivision the term "beneficial

interest" shall mean the beneficial incidents of ownership of the

improvement to include, but not be limited to, the right to possession,

the right to claim tax benefits, if any, and the right to purchase or

secure title to the improvement pursuant to an executory contract of

sale, option agreement or lease.

8. Improvement of real property. The term "improvement of real

property," when used in this chapter, means any improvement of real

property not belonging to the state or a public corporation.

9. Contractor. The term "contractor," when used in this chapter, means

a person who enters into a contract with the owner of real property for

the improvement thereof, or with the state or a public corporation for a

public improvement.

10. Subcontractor. The term "subcontractor" when used in this chapter,

means a person who enters into a contract with a contractor and/or with

a subcontractor for the improvement of such real property or such public

improvement or with a person who has contracted with or through such

contractor for the performance of his contract or any part thereof.

11. Laborer. The term "laborer," when used in this chapter, means any

person who performs labor or services upon such improvement.

12. Materialman. The term "materialman" when used in this chapter,

means any person who furnishes material or the use of machinery, tools,

or equipment, or compressed gases for welding or cutting, or fuel or

lubricants for the operation of machinery or motor vehicles, either to

an owner, contractor or subcontractor, for, or in the prosecution of

such improvement.

The expression "furnishes material" or other similar expression

wherever used in this chapter, shall be deemed to mean and 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, or by motor vehicles owned, operated or controlled by the

owner, or a contractor or subcontractor while engaged exclusively in the

transportation of materials to or from the improvement for the purposes

thereof.

13. Building loan contract. The term "building loan contract," when

used in this chapter, means a contract whereby a party thereto, in this

chapter termed "lender," in consideration of the express promise of an

owner to make an improvement upon real property, agrees to make advances

to or for the account of such owner to be secured by a mortgage on such

real property, whether such advances represent moneys to be loaned or

represent moneys to be paid in purchasing from or in selling for such

owner bonds or certificates secured by such mortgage upon such real

property, providing, however, nothing herein contained shall be deemed

to construe as a building loan contract a preliminary application for a

building loan made by such owner and accepted by such lender if,

pursuant to such application and acceptance, a building loan contract is

thereafter entered into between the owner and the lender and filed as

provided in section twenty-two of this chapter.

14. Building loan mortgage. The term "building loan mortgage," when

used in this chapter, means a mortgage made pursuant to a building loan

contract and includes an agreement wherein and whereby a building loan

mortgage is consolidated with existing mortgages so as to constitute one

lien upon the mortgaged property.

15. Subsequent financing. By the term "subsequent financing" is meant

moneys borrowed upon the security of the improvement after the recording

of a building loan contract and/or mortgage other than a building loan

mortgage upon the premises to be improved and within four months after

the completion thereof.

16. Prior mortgage. By the term "prior mortgage" is meant a mortgage

on real property and/or leasehold recorded prior to the commencement of

an improvement thereon.

17. Consideration. The term "consideration" when used in this chapter,

includes real property as defined in section two hereof, and personal

property as defined in section thirty-nine of the general construction

law.

18. Advances. The term "advances" when used in this chapter, includes

money, real property as defined in section two hereof and/or personal

property as defined in section thirty-nine of the general construction

law.

19. Funds. The term "funds" when used in this chapter, includes money,

real property as defined in section two hereof and/or personal property

as defined in section thirty-nine of the general construction law.

20. Persons. The term "persons" when used in this chapter, includes an

individual, partnership, association, trust or corporation.

Mechanic's lien on real property. 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 contracting 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.

Extent of lien. (1) Such lien 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 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 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 subsequently earned thereon. In no case shall the owner be

liable to pay by reason of all 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 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 improvements 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 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.

(3) Notwithstanding subdivision two if a property owner is also a

developer of oil and gas resources and is a party to an agreement with a

person or firm authorized to perfect a lien arising out of the failure

of such developer to compensate or render value for improvements to the

property upon which an oil or gas well is drilled or established, the

lien shall extend to the owners' right or interest in such real

property.

Insurance proceeds liable for demands. Owner, contractor or

subcontractor diverting proceeds, guilty of larceny. 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, 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.

The proceeds of any insurance which by the terms of the policy are

payable to a contractor or subcontractor, 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 he has performed labor or services

or for which he has furnished materials, shall, after such contractor or

subcontractor has been reimbursed therefrom for premiums paid by him, if

any, for such insurance, be liable for the payment of demands for labor

or services performed or materials furnished by his order and for which

he is liable, in the same manner and under the same conditions as

payments to him under his contract would have been had such improvement

not been so destroyed or removed.

Liens under contracts for public improvements. A person

performing labor for or furnishing materials to a contractor, his or her

subcontractor or legal representative, for the construction or

demolition of a public improvement pursuant to a contract by such

contractor with the state or a public corporation, and any trust fund to

which benefits and wage supplements are due or payable for the benefit

of such person performing labor, shall have a lien for the principal and

interest of the value or agreed price of such labor, including benefits

and wage supplements due or payable for the benefit of any person

performing labor, or materials upon the moneys of the state or of such

corporation applicable to the construction or demolition of such

improvement, to the extent of the amount due or to become due on such

contract, and under a judgment of the court of claims awarded to the

contractor for damages arising from the breach of such contract by the

state, or awarded for furnishing labor or materials not contemplated by

the provisions of said contract, upon filing a notice of lien as

prescribed in this article, except as hereinafter in this article

provided. Where no public fund has been established for the financing of

a public improvement with estimated cost in excess of two hundred fifty

thousand dollars, the chief financial officer of the public owner shall

require the private entity for whom the public improvement is being made

to post, or cause to be posted, a bond or other form of undertaking

guaranteeing prompt payment of moneys due to the contractor, his or her

subcontractors and to all persons furnishing labor or materials to the

contractor or his or her subcontractors in the prosecution of the work

on the public improvement.

Liens for labor on railroads. Any person who shall hereafter

perform any labor for a railroad corporation shall have a lien for the

value of such labor upon the railroad track, rolling-stock and

appurtenances of such railroad corporation and upon the land upon which

such railroad track and appurtenances are situated, by filing a notice

of such lien in the office of the clerk of any county wherein any part

of such railroad is situated, to the extent of the right, title and

interest of such corporation in such property, existing at the time of

such filing. The provisions of this article relating to the contents,

filing and entry of a notice of a mechanic's lien, and the priority and

duration thereof, shall apply to such liens. A copy of the notice of

such lien shall be personally served upon such corporation within ten

days after the filing thereof in the manner prescribed by the justice

court act for the service of summons in actions in justices' courts

against domestic railroad corporations.

Liability for advance payments, collusive mortgages and

incumbrances. Any payment by the owner, contractor or subcontractor upon

a contract for the improvement of real property, made prior to the time

when, by the terms of the contract, such payment becomes due, for the

purpose of avoiding the provisions of this article, shall be of no

effect as against the lien of a subcontractor, laborer, or materialman

under such contract, created before such payment actually becomes due. A

conveyance, mortgage, lien or incumbrance made by an owner of real

property, for the purpose of avoiding the provisions of this article,

with the knowledge or privity of the person to whom the conveyance is

made or in whose favor the mortgage, lien or incumbrance is created,

shall be void and of no effect as against a claim on account of the

improvement of such real property, existing at the time of the making of

the conveyance or the creation of such mortgage, lien or incumbrance.

Nothing in this chapter shall subject the title of a purchaser of real

property for value whose conveyance is recorded prior to the filing of a

lien pursuant to this chapter to any such lien, provided the instrument

of conveyance contains the provisions mentioned in subdivision five of

section thirteen.

Terms of contract may be demanded. A statement of the terms of a

contract made between an owner and a contractor, pursuant to which an

improvement of real property is being made, and, of the amount due or to

become due thereon shall be furnished upon demand in writing by the

owner, or his duly authorized agent, to a subcontractor, laborer or

material man performing labor for or furnishing materials to a

contractor, or subcontractor, under such contract. If, within thirty

days of such demand the owner refuses or neglects to furnish such

statement or falsely states the terms of such contract or the amount due

or to become due thereon, and a subcontractor, laborer or material man

has not been paid the amount of his claim against a contractor or

subcontractor, under such contract, and a judgment has been obtained and

execution issued against such contractor or subcontractor and returned

wholly or partly unsatisfied, the owner shall be liable for the loss

sustained by reason of such refusal, neglect or false statement, and the

lien of such subcontractor, laborer or material man, filed as prescribed

in this article, against the real property improved for the labor

performed or materials furnished after such demand, shall exist to the

same extent and be enforced in the same manner as if such labor and

materials had been directly performed for and furnished to such owner.

Contents of notice of lien. The notice of lien shall state:

1. The name and residence of the lienor; 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.

1-a. The name and address of the lienor's attorney, if any.

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.

3. The name of the person by whom the lienor was employed, or to whom

he furnished or is to furnish materials; or, if the lienor is a

contractor or subcontractor, the person with whom the contract was made.

4. The labor performed or materials furnished and the agreed price or

value thereof, or materials actually manufactured for but not delivered

to the real property and the agreed price or value thereof.

5. The amount unpaid to the lienor for such labor or materials.

6. The time when the first and last items of work were performed and

materials were furnished.

7. The property subject to the lien, with a description thereof

sufficient for identification; and if in a city or village, its location

by street and number, if known; whether the property subject to the lien

is real property improved or to be improved with a single family

dwelling or not. A failure to state the name of the true owner or

contractor, or a misdescription of the true owner, shall not affect the

validity of the lien. The notice must be verified by the lienor or his

agent, to the effect that the statements therein contained are true to

his knowledge except as to the matters therein stated to be alleged on

information and belief, and that as to those matters he believes it to

be true.

Filing of notice of lien. 1. Notice of 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 performance of the work, or the final furnishing of the

materials, dating from the last item of work performed or materials

furnished; provided, however, that where the improvement is related to

real property improved or to be improved with a single family dwelling,

the notice of 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 lien is for retainage, the notice of lien may be filed within ninety

days after the date the retainage was due to be released; except that in

the case of a lien by a real estate broker, the notice of 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 municipality 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 notice of lien must

be filed in the clerk's office of the county where the property is

situated. 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

counties. 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.

2. Where the county clerk indexes liens in a block index, every notice

of lien presented to the clerk of a county of filing, in order to

entitle the same to be filed, shall contain in the body thereof, or

shall have endorsed thereon, a designation of the number of every block,

on the land map of the county, which is affected by the notice of lien.

The county clerk shall cause such notice of lien to be entered in the

block index suitably ruled to contain the columns listed in the

preceding paragraph, under the block number of every block so

designated. In cases where a notice of lien shall have been filed

without such designation or with an erroneous designation, the county

clerk, on presentation of proper proof thereof, shall enter such

instrument in the proper index, under the proper block number of every

block in which the land affected is situated, and shall, at the same

time, make a note of such entry and of the date thereof in every place

in which such instrument may have been erroneously indexed, opposite the

entry thereof, and also upon the instrument itself, if the same be in

his possession or produced to him for the purpose, and the filing of

such instrument shall be constructive notice as to property in the block

not duly designated at the time of such filing only from the time when

the same shall be properly indexed.

A county clerk may adopt a new indexing system utilizing

electro-mechanical, electronic or any other method he deems suitable for

maintaining the indexes.

Service of copy of notice of lien. Within five days before or

thirty days after filing the notice of 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 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 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. 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 claiming a lien.

Notice of completion and acceptance may be demanded. 1. At any

time before the construction or demolition of a public improvement is

completed and accepted by the state or any political subdivision

thereof, or by a public corporation or within thirty days thereof a

person performing work for or furnishing materials to a contractor, his

subcontractor, assignee or legal representative may file a written

demand requiring notice of completion and acceptance be given to him

upon the happening of such event.

2. Such demand shall be filed with the head of the department or

bureau having charge of the construction or demolition. It shall state

the name and address of the one making the demand; the name of the

contractor or subcontractor for whom the labor was performed or

materials furnished; the estimated amount of the entire value thereof;

and a description of the public improvement upon which the labor was

performed or the materials furnished.

3. Within five days of any completion and acceptance in respect to

which a demand for notice has been filed pursuant to the provisions of

this section the head of the department or bureau issuing the same shall

cause written notice thereof to be mailed to the name and address of the

one making the demand as recited therein.

4. The failure by the state, public corporation or any officer or

employee thereof to give the notice required by this section shall not

give rise to any cause of action; extend any period of time within which

an act must be performed; or otherwise alter, affect or impair any other

right or duty.

Copy of notice of lien to a contractor or subcontractor.

Within five days before or thirty days after filing a notice of lien in

accordance with section ten of this chapter or the filing of an

amendment of notice of lien in accordance with section twelve-a of this

chapter the lienor shall serve a copy of such notice or amendment by

certified mail on the contractor, subcontractor, assignee or legal

representative for whom he was employed or to whom he furnished

materials or if the lienor is a contractor or subcontractor to the

person, firm or corporation with whom the contract was made. A lienor

having a direct contractual relationship with a subcontractor 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 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.

Copy of notice of lien to a contractor or subcontractor with

respect to public improvements liens. Within five days before or

simultaneously with filing a notice of lien in accordance with section

twelve of this chapter or the filing of an amendment of a notice of lien

in accordance with section twelve-a of this chapter with respect to a

public improvement lien, the lienor shall serve a copy of such notice or

amendment by certified mail on the contractor, subcontractor, assignee

or legal representative for whom he was employed or to whom he furnished

materials or if the lienor is a contractor or subcontractor to the

person, firm or corporation with whom the contract was made. A lienor

having a direct contractual relationship with a subcontractor 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. The notice

of lien so filed shall contain thereon or there shall be filed therewith

proof of service of a copy of said lien upon the parties required to be

served pursuant to this section, and failure to file proof of such

service shall render the notice of lien a nullity. Any lienor, or a

person acting on behalf of a lienor, who fails to serve a copy of the

notice of 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.

Notice of lien on account of public improvements. At any time

before the construction or demolition of a public improvement is

completed and accepted by the state or by the public corporation, and

within thirty days after such completion and acceptance, a person

performing work for or furnishing materials to a contractor, his

subcontractor, assignee or legal representative, may file a notice of

lien with the head of the department or bureau having charge of such

construction or demolition and with the comptroller of the state or with

the financial officer of the public corporation, or other officer or

person charged with the custody and disbursements of the state or

corporate funds applicable to the contract under which the claim is

made. The notice shall state the name and residence of the lienor, the

name of the contractor or subcontractor for whom the labor was performed

or materials furnished, the amount claimed to be due or to become due,

the date when due, a description of the public improvement upon which

the labor was performed and materials expended, the kind of labor

performed and materials furnished, and materials actually manufactured

for but not delivered to such public improvement, and give a general

description of the contract pursuant to which such public improvement

was constructed or demolished. If the lienor is a partnership or a

corporation, the notice shall state the business address of such

partnership or corporation, the names of the partners, and if a foreign

corporation, its principal place of business within the state. If the

name of the contractor or subcontractor is not known to the lienor, it

may be so stated in the notice, and a failure to state correctly the

name of the contractor or subcontractor shall not affect the validity of

the lien. The notice must be verified by the lienor or his agent, to the

effect that the statements therein contained are true to his own

knowledge, except as to the matters therein stated to be alleged on

information and belief, and that as to those matters he believes it to

be true. The comptroller of the state or the financial officer of the

public corporation or other officer or person charged with the custody

and disbursements of the state or corporate funds applicable to the

contract under which the claim is made shall enter the same in a book

provided for that purpose, to be called the "lien book". Such entry

shall include the name and residence of the lienor, the name of the

contractor or subcontractor, the amount of the lien and date of filing,

and a brief designation of the contract under which the lien arose.

Amendment. 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 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.

2. In a proper case, the court may, upon five days' notice to existing

lienors, mortgagees and owner, make an order amending a notice of lien

upon a public or private improvement, nunc pro tunc. However, no

amendment shall be granted to the prejudice of an existing lienor,

mortgagee or purchaser in good faith, as the case may be.

13. Priority of liens. (1) 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 judgment. 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 wages shall have

preference over all other claimants under this article.

(1-a) Parties having assignments of moneys due or to become due under

a contract for the improvement of real property, unless such assignments

be set aside as diversions of trust assets as provided in article

three-a of this chapter, shall have priority as follows:

An assignee of moneys or any part thereof, due or to become due under

a contract for the improvement of real property, whose assignment is

duly filed prior to the filing of a notice of lien or assignment of

every other party to the action, shall have priority over those parties

to the extent of moneys advanced upon such assignment before the filing

of the notice of lien or assignment next subsequent to his assignment,

but as to moneys advanced subsequent to a notice of lien or assignment

filed and unsatisfied or not discharged such assignee for the purpose of

determining his proportionate share of moneys available for distribution

as provided in subdivision one of this section shall be treated as a

lienor having a lien to the extent of moneys so advanced.

An assignee of moneys or any part thereof, due or to become due under

a contract for an improvement of real property whose assignment is duly

filed subsequent to the filing of the notice of lien or assignment of

any other party shall for the purpose of determining his proportionate

share of moneys available for distribution, as provided in subdivision

one of this section be treated as a lienor having a lien to the extent

of moneys actually advanced upon such assignment prior to the filing

thereof.

(2) When a building loan mortgage is delivered and recorded a lien

shall have priority over advances made on the building loan mortgage

after the filing of the notice of lien; but such building loan mortgage,

whenever recorded, to the extent of advances made before the filing of

such notice of lien, shall have priority over the lien, provided it or

the building loan contract contains the covenant required by subdivision

three hereof, and provided the building loan contract is filed as

required by section twenty-two of this chapter. Every mortgage recorded

subsequent to the commencement of the improvement and before the

expiration of the period specified in section ten of this chapter for

filing of notice of lien after the completion of the improvement shall,

to the extent of advances made before the filing of a notice of lien,

have priority over liens thereafter filed if it contains the covenant

required by subdivision three hereof. The lien of a vendee under an

executory contract for the sale of land and the improvement thereof by

the construction of a building thereon shall, to the extent of amounts

paid thereunder to the vendor before the filing of a notice of lien,

have priority over liens filed after the contract or memorandum thereof

is recorded as provided in section two hundred ninety-four of the real

property law if the recorded contract or memorandum specifies the total

amount of payments made by the vendee or required by the contract to be

made by the vendee before conveyance of title.

(3) Every such building loan mortgage and every mortgage recorded

subsequent to the commencement of the improvement and before the

expiration of the period specified in section ten of this chapter for

filing of notice of lien after the completion of the improvement shall

contain a covenant by the mortgagor that he will receive the advances

secured thereby and will hold the right to receive such advances as a

trust fund to be applied first for the purpose of paying the cost of

improvement, and that he will apply the same first to the payment of the

cost of improvement before using any part of the total of the same for

any other purpose, provided, however, that if the party executing the

building loan contract is not the owner of the fee but is the party to

whom such advances are to be made, a building loan contract executed and

filed pursuant to section twenty-two of this chapter shall contain the

said covenant by such party executing such building loan contract, in

place of the covenant by the mortgagor in the building loan mortgage as

hereinbefore provided. Nothing in this subdivision shall be considered

as imposing upon the lender any obligation to see to the proper

application of such advances by the owner; and nothing in this section,

nor in that portion of section two of this chapter, defining "cost of

improvement" shall be deemed to impair or subordinate the lien of any

mortgage containing the covenant required by this subdivision. To the

extent that the trust res consists of the right to receive advances as

distinct from advances actually received, breach of the trust shall give

rise to a civil action only. The covenant provided for herein shall be

deemed to have been made and to be in full force and effect if, in lieu

of the foregoing provisions, a statement in substantially the following

form is contained in the mortgage or contract, "subject to the trust

fund provisions of section thirteen of the lien law."

(4) Nothing in subdivision two or three of this section shall apply to

any mortgage given by a purchaser for value from an owner making the

improvement and recorded prior to the filing of a lien pursuant to this

chapter, provided the instrument of conveyance contains the provisions

mentioned in subdivision five herein.

(5) No instrument of conveyance recorded subsequent to the

commencement of the improvement, and before the expiration of the period

specified in section ten of this chapter for filing of notice of lien

after the completion of the improvement, shall be valid as against liens

filed within a corresponding period of time measured from the recording

of such conveyance, unless the instrument contains a covenant by the

grantor that he will receive the consideration for such conveyance and

will hold the right to receive such consideration as a trust fund to be

applied first for the purpose of paying the cost of the improvement and

that he will apply the same first to the payment of the cost of the

improvement before using any part of the total of the same for any other

purpose. Nothing in this subdivision shall be construed as imposing upon

the grantee any obligation to see to the proper application of such

consideration by the grantor. Nothing in this subdivision shall apply to

a deed given by a referee or other person appointed by the court for the

sole purpose of selling real property. Nothing in this subdivision shall

apply to the consideration received by a grantor who, pursuant to a

written agreement entered into and duly recorded prior to the

commencement of the improvement, conveys to the person making such

improvement, the land upon which such improvement is made. However, such

a conveyance shall be subject to liens filed prior thereto, as provided

by this chapter. To the extent that the trust res consists of the right

to receive the consideration for such conveyance as distinct from the

consideration actually received, breach of the trust shall give rise to

a civil action only. The covenant provided for herein shall be deemed to

have been made and to be in full force and effect if, in lieu of the

foregoing provisions, a statement in substantially the following form is

contained in the instrument of conveyance, "subject to the trust fund

provisions of section thirteen of the lien law."

Except that this section shall not apply to any mortgage taken by the

home owners' loan corporation, a corporation created under an act of

congress, known as the "home owners' loan act of nineteen hundred

thirty-three," and the "home owners' loan act of nineteen hundred

thirty-three as amended," and said mortgage shall have priority over any

and all liens filed subsequent to the date of the recording of said

mortgage whether or not the cash and/or bonds for which said mortgage

has been taken as security, shall have been advanced at the time of the

execution of such mortgage or subsequent thereto, and it shall not be

necessary to execute and file any building loan contract or any other

contract, in compliance with this section or any part thereof.

(6) Every assignment of moneys, or any part thereof, due or to become

due under a contract for the improvement of real property shall contain

a covenant by the assignor that he will receive any moneys advanced

thereunder by the assignee and will hold the right to receive such

moneys as trust funds to be first applied to the payment of trust claims

as defined in section seventy-one of the lien law, and that he will

apply the same to such payments only, before using any part of the

moneys for any other purpose.

Assignment of lien. A lien, filed as prescribed in this article,

may be assigned by a written instrument signed and acknowledged by the

lienor, at any time before the discharge thereof. Such assignment shall

contain the names and places of residence of the assignor and assignee,

the amount of the lien and the date of filing the notice of lien, and be

filed in the office where the notice of the lien assigned is filed. The

facts relating to such an assignment and the names of the assignee shall

be entered by the proper officer in the book where the notice of lien is

entered and opposite the entry thereof. Unless such assignment is filed,

the assignee need not be made a defendant in an action to foreclose a

mortgage, lien or other incumbrance. A payment made by the owner of the

real property subject to the lien assigned or by his agent or

contractor, or by the contractor of a public corporation, to the

original lienor, on account of such lien, without notice of such

assignment and before the same is filed, shall be valid and of full

force and effect. Except as prescribed herein, the validity of an

assignment of a lien shall not be affected by a failure to file the

same.

Assignments of contracts and orders to be filed. 1. No

assignment of one or more contracts for the performance of labor or the

furnishing of materials for the improvement of real property or of the

money or any part thereof due or to become due therefor, nor an order

drawn by a contractor upon the owner of such real property for the

payment of such money, nor an order drawn by a subcontractor upon a

contractor or subcontractor for such payment, nor an order drawn by an

owner upon the maker of a building loan, nor an assignment of moneys due

or to grow due under a building loan contract, shall operate to reduce

the lien of a subcontractor, laborer or materialman, except as provided

in sections thirteen and twenty-six of this chapter; nor shall any such

assignment or order be valid for any purpose, unless a "Notice of

Assignment" meeting the requirements of subdivision two of this section

or the contract (other than a building loan contract) or a statement

containing the substance thereof and such assignment or a copy of each

or a copy of such order, be filed within ten days after the date of such

assignment or such order, in the office of the county clerk of each

county wherein real property improved or to be improved to which the

assignment or order relates is situated and such assignment or order

shall have effect and be enforceable from the time of such filing, and

no such assignment or order shall have any validity until the same shall

have been so filed, and every such assignment or order, not filed shall

be absolutely void as against a subsequent assignee in good faith and

for valuable consideration, whose assignment or order is first duly

filed. Such clerk shall enter the facts relating to such assignment or

order in the "lien docket" or in another book provided by him for such

purpose. Each such assignment shall be indexed by the name of the

assignor and each such order shall be indexed by the name of the drawer.

2. A "Notice of Assignment" filed pursuant to subdivision one of this

section shall be used only in the case of money advanced or to be

advanced to a contractor or subcontractor upon the assignment of one or

more contracts for the performance of labor or the furnishing of

materials for the improvement of real property, or of the money or any

part thereof due or to become due therefor. The said notice shall

contain (a) the names and addresses of the assignor and assignee, (b)

the date of the assignment, and the date the assignment will terminate,

which termination date shall not be more than two years after the date

of the assignment, (c) the maximum balance of advances outstanding to be

secured by the assignment, (d) a statement of each county wherein the

real property involved in the contracts is or may be situated, and (e)

either a specific description of the substance of the contract or

contracts assigned, including an identification of the real property

involved in each such contract, or a statement that the assignment

covers all or a specified class of the assignor's accounts or contract

rights. If the contract or contracts assigned are described specifically

the real property identification shall be sufficient if it includes the

name of the record owner and the location of the real estate by street

and number and town or city or, if the real estate is in the city of New

York, by county, except that if the real estate is in the city of New

York or counties of Nassau or Onondaga, where the block system of

recording or registering and indexing conveyances is in use, the notice

must also specify the block in which the real estate is situated.

3. A "Notice of Assignment" may be continued in effect beyond the

stated termination date by filing within sixty days prior to the

termination date a subsequent "Notice of Assignment" entitled "Second

Notice of Assignment" or "Third Notice of Assignment", which identifies

the prior "Notice of Assignment" to which it relates and otherwise

conforms to the requirements of subdivision two of this section.

4. The term "Notice of Assignment" as used in this section includes

any amendments but if any amendment extends the assignment to cover

additional contracts it is effective as to the added contracts only from

the date of the filing.

Assignment of contracts and orders for public improvement to be

filed. No assignment of a contract for the performance of labor or the

furnishing of materials for a public improvement, or of the money, or

any part thereof, due, or to become due, therefor, nor an order drawn by

the contractor or sub-contractor upon the public corporation, or the

head of the department or bureau having charge of the construction or

demolition of such public improvement, or the financial officer of the

public corporation, or other officer or person charged with the custody

and disbursement of the corporate funds applicable to the contract for

such public improvement, shall be valid unless such assignment or order,

or a copy thereof, be filed within twenty days after the date of such

assignment of contract, or such assignment of money, or such order, with

the head of the department or bureau having charge of such construction

or demolition, and with the financial officer of the public corporation

or other officer or person charged with the custody and disbursement of

the corporate funds applicable to the contract for such public

improvement, and such assignment or order shall have effect and be

enforceable from the time of such filing, and no such assignment or

order shall have any validity until the same shall have been so filed,

and every such assignment or order, not filed, shall be absolutely void

as against a subsequent assignee in good faith and for valuable

consideration, whose assignment or order is first duly filed. The

financial officer of the public corporation, or other officer or person

with whom the assignment order, or copy thereof, is filed, shall enter

the facts relating to the same in the lien book or other book provided

for such purpose.

Duration of lien. No 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 thereof, 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 failure 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.

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

nevertheless 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.

Duration of lien under contract for a public improvement. If the

lien is for labor done or materials furnished for a public improvement,

it shall not continue for a longer period than one year from the time of

filing the notice of such lien, unless an action is commenced to

foreclose such lien within that time, and a notice of the pendency of

such action is filed with the comptroller of the state or the financial

officer of the public corporation with whom the notice of such lien was

filed; or unless an extension to such lien is filed with the comptroller

of the state or the financial officer of the public corporation with

whom the notice of such lien was 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 contractor or

subcontractor for whom the labor was performed or materials furnished, a

description of the public improvement upon which the labor was performed

and materials expended, the amount of such lien, and the date of the

filing of 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

a new docket be made stating such fact. No lien shall be continued by

such order for more than one year from the granting thereof, but a new

order and entry may be made in each of two successive years. If a lienor

be 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. The provision of this section in regard

to continuing liens shall apply to liens discharged by deposit or by

order on the filing of an undertaking. This section is hereby declared

to be a remedial statute and is to be construed liberally to secure the

beneficial interests and purposes thereof.

Discharge of lien for private improvement. A lien other than a

lien for labor performed or materials furnished for a public improvement

specified in this article, may be discharged as follows:

(1) By the certificate of the lienor, duly acknowledged or proved and

filed in the office where the notice of lien is filed, stating that the

lien is satisfied or released as to the whole or a portion of the real

property affected thereby and may be discharged in whole or in part,

specifying the part. Upon filing such certificate, the county clerk in

the office where the same is filed, shall note the fact of such filing

in the "lien docket" in the column headed "Proceedings had" opposite the

docket of such lien.

(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 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, 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.

(3) By order of the court vacating or cancelling such lien of record,

for neglect of the lienor to prosecute the same, granted pursuant to

section fifty-nine of this chapter.

(4) Either before or after the beginning of an action by the 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 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

business, 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

effective 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

paragraph a of this subdivision, the 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 situated. 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 thereof, 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

stated 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 mailing 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.

(5) Upon filing in the office of the clerk of the county where the

property is situated, a transcript of a judgment of a court of competent

jurisdiction, together with due proof of service of due notice of entry

thereof, showing a final determination of the action in favor of the

owner of the property against which the lien was claimed.

(6) Where it appears from the face of the notice of lien that the

claimant has no valid lien by reason of the character of the labor or

materials furnished and for which a lien is claimed, or where for any

other reason the notice of lien is invalid by reason of failure to

comply with the provisions of section nine of this article, or where it

appears from the public records that such notice has not been filed in

accordance with the provisions of section ten of this article, the owner

or any other party in interest, may apply to the supreme court of this

state, or to any justice thereof, or to the county judge of the county

in which the notice of lien is filed, for an order summarily discharging

of record the alleged lien. A copy of the papers upon which application

will be made together with a notice setting forth the court or the

justice thereof or the judge to whom the application will be made at a

time and place therein mentioned must be served upon the lienor not less

than five days before such time. If the lienor can not be found, such

service may be made as the court, justice or judge may direct. The

application must be made upon a verified petition accompanied by other

written proof showing a proper case therefor, and upon the approval of

the application by the court, justice or judge, an order shall be made

discharging the alleged lien of record.

Discharge of lien after notice of lien filed by payment of money

into court. A lien specified in this article, other than a lien for

performing labor or furnishing materials for a public improvement, may

be discharged after the notice of lien is filed at any time before an

action is commenced to foreclose such lien, by depositing with the

county clerk, in whose office the notice of lien is filed, a sum of

money equal to the amount claimed in such notice, with interest to the

time of such deposit. After such deposit is made and the lien is

discharged the county treasurer or any other officer with whom the money

is deposited shall, within ten days thereafter, send a notice by mail to

the lienor, at the address given in the lien, that such lien has been

discharged by deposit. After action to foreclose the lien is commenced

it may be discharged by a payment into court of such sum of money, as,

in the judgment of the court or a judge or justice thereof, after at

least five days' notice to all the parties to the action, will be

sufficient to pay any judgment which may be recovered in such action.

Upon any such payment, the county clerk shall forthwith enter upon the

lien docket and against the lien for the discharge of which such moneys

were paid, the words "discharged by payment. " A deposit of money made

as prescribed in this section shall be repaid to the party making the

deposit, or his successor, upon the discharge of the liens against the

property pursuant to law. All deposits of money made as provided in this

section shall be considered as paid into court and shall be subject to

the provisions of law relative to the payment of money into court and

the surrender of such money by order of the court. An order for the

surrender of such moneys to the lienor or depositor may be made by any

court of record having jurisdiction of the parties. If no action is

brought in a court of record to enforce such lien, such order may be

made by any judge of a court of record. If application for such order is

made by lienor it shall be on notice to the depositor; if made by the

depositor then on notice to the lienor.

Discharge of lien for public improvement. A lien against the

amount due or to become due a contractor from the state or a public

corporation for the construction or demolition of a public improvement

may be discharged as follows:

1. By filing a certificate of the lienor or his successor in interest,

duly acknowledged and approved, stating that the lien is discharged.

2. By lapse of time as follows:

(a) When one year has elapsed since the filing of the notice of lien

or an extension thereof, unless, before the expiration thereof, either

an extension or an order continuing said lien has been filed in the

office where the notices are filed, or a notice of the pendency of an

action to enforce said lien has been filed as provided in section

eighteen of this article.

(b) When the period of time for which the lien has been continued by

order has expired, unless, before the expiration thereof, either an

order continuing said lien for a further period of time has been filed

in the offices where the notices are filed, or a notice of the pendency

of an action to enforce said lien has been filed as provided in section

eighteen of this article.

3. By satisfaction of a judgment rendered in an action to enforce the

lien.

3-a. Under the provisions of subdivisions four, five and six of this

section a discharge of lien shall only operate to relieve the

comptroller of the state or the financial officer of the public

corporation or the officer or person with whom the lien is filed of any

and all liability imposed upon such officer by reason of the filing of

the lien. Such lien shall be a valid and subsisting lien for all other

purposes until discharged as prescribed by the provisions of the other

subdivisions of this section.

4. By the contractor applying without notice to the supreme court of

this state or to any justice thereof or to the county judge of any

county for an order discharging such lien and depositing with the

comptroller of the state or the financial officer of the public

corporation, or the officer or person with whom the notice of lien is

filed, such a sum of money as is directed by a judge or a justice of the

court, which shall not be less than the amount claimed by the lienor,

with interest thereon for the term of one year from the time of making

such deposit, and such additional amount as the judge or justice deems

sufficient to cover all costs and expenses. The amount so deposited

shall remain with the comptroller or such financial officer or other

officer or person until the lien is otherwise discharged as prescribed

in this section.

(5) Either before or after the beginning of an action by a contractor

or subcontractor executing a bond or undertaking in an amount equal to

one hundred ten percent of such lien conditioned for the payment of any

judgement which may be recovered in an action to enforce 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

business, 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 seal of said company, shall be filed with each

bond or undertaking. Any such bond or undertaking shall be filed with

the state or the public corporation with which the notice of lien is

filed and a copy shall be served upon the adverse party. The undertaking

is effective 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

paragraph a of this subdivision, the owner or contractor shall execute

an undertaking with two or more sufficient sureties, who shall be free

holders, to the state or public corporation with which the notice of

lien is filed. 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

thereof, 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, then

service under this subsection may be made as prescribed in paragraph c

of subdivision four of section nineteen of this article for the service

of an undertaking with notice of justification of sureties.

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 mailing 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 public improvements.

6. Where a contractor has to his credit with the state or with a

public corporation, a sum of money by reason of an estimate due and

payable to him, and where payment of such estimate is withheld because a

notice of lien has been filed against his interest in said money, and

where said money is in excess of the amount claimed in the notice of

lien, the contractor may apply without notice to the supreme court of

this state or to any justice thereof or to the county judge of any

county, for an order discharging such lien and directing the comptroller

of the state or the financial officer or person with whom the lien is

filed, to retain from such estimate a sum of money, which shall not be

less than the amount claimed by the lienor, with interest thereon for

one year and such additional amount as the judge or justice deems

sufficient to cover all costs and expenses and to immediately pay over

the balance of such estimate to the contractor. The amount so retained

shall be held by the comptroller or such financial officer or other

officer or person until the lien is otherwise discharged as provided in

this section. The application for the order may be made upon an

affidavit of the contractor or his attorney and where there is of record

an assignment of all moneys the written consent of such assignee must be

presented to the court showing a proper case therefor.

6-a. Where a contractor has to his credit with the state, or with a

public corporation, a sum of money by reason of an estimate due and

payable to him, and where payment of such estimate is withheld because a

notice of lien has been filed against his interest in said money, and

where the amount due and payable under said estimate is at least one and

one-half times in excess of the amount stated to be due in said notice

of lien, the comptroller of the state or the financial officer or person

with whom the notice of lien is filed, may pay said estimate, after

deducting therefrom a sum which shall be one and one-half times the

amount stated to be due in said notice of lien, and said sum so deducted

shall be withheld until said lien is otherwise discharged, as provided

in this section.

7. Where it appears from the face of the notice of lien that the

claimant has no valid lien by reason of the character of the labor or

materials furnished and for which a lien is claimed, or where the notice

of lien is invalid by reason of failure to comply with the provisions of

section twelve of this article, or where it appears from the public

records that such notice has not been filed in accordance with the

provisions of section twelve of this article, the contractor or any

other party in interest, may apply to the supreme court of this state,

or to any justice thereof, or to the county judge of the county in which

the notice of lien is filed, for an order summarily discharging of

record the alleged lien. A copy of the papers upon which application

will be made together with a notice setting forth the court or the

justice thereof or the judge to whom the application will be made at a

time and place therein mentioned must be served upon the lienor not less

than five days before such time. If the lienor can not be found, such

service may be made as the court, justice or judge may direct. The

application must be made upon a verified petition accompanied by other

written proof showing a proper case therefor, and upon the approval of

the application by the court, justice or judge, an order shall be made

discharging the alleged lien of record.

8. By order of the court vacating or canceling such lien of record,

for neglect of the lienor to prosecute the same, granted pursuant to

section twenty-one-a of this article.

Vacating lien for a public improvement, by order of court. A

lien against the amount due or to become due a contractor from the state

or a public corporation, for the construction or demolition of a public

improvement, may be vacated and canceled by an order of the supreme

court. Before such order shall be granted, a notice shall be served upon

the lienor personally or, in such manner as the court may direct. 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 the supreme

court in the judicial district embracing the county wherein the notice

of lien is filed, at a time and place specified therein, why the notice

of lien should not be vacated and canceled of record. Proof of such

service and that the lienor has not commenced the action to foreclose

such a lien, as directed in the notice, shall be made by affidavit, at

the time of applying for such order.

Building loan contract. A building loan contract either with or

without the sale of land, and any modification thereof, must be in

writing and duly acknowledged, and must contain a true statement under

oath, verified by the borrower, showing the consideration paid, or to be

paid, for the loan described therein, and showing all other expenses, if

any, incurred, or to be incurred in connection therewith, and the net

sum available to the borrower for the improvement, and, on or before the

date of recording the building loan mortgage made pursuant thereto, to

be filed in the office of the clerk of the county in which any part of

the land is situated, except that any subsequent modification of any

such building loan contract so filed must be filed within ten days after

the execution of any such modification. No such building loan contract

or any modification thereof shall be filed in the register's office of

any county. If not so filed the interest of each party to such contract

in the real property affected thereby, is subject to the lien and claim

of a person who shall thereafter file a notice of lien under this

chapter. A modification of such contract shall not affect or impair the

right or interest of a person, who, previous to the filing of such

modification had furnished or contracted to furnish materials, or had

performed or contracted to perform labor for the improvement of real

property, but such right or interest shall be determined by the original

contract. The county clerk is entitled to a fee of twenty-five dollars,

except in counties within the city of New York where the fee shall be

fifty dollars, for filing such a contract or modification. Except where

the county clerk maintains a block index, such contracts and

modifications thereof shall be indexed in a book provided for that

purpose, in the alphabetical order of the names of the persons to whom

such loans shall be made. No assignment of the moneys due or to become

due under a building loan contract, under the provisions of section

twenty-six of this article, nor any payment to the holder of such

assignment, shall be or be construed to be a modification of a building

loan contract within the meaning of this section, and the execution and

delivery of a bond and mortgage, under the provisions of section

twenty-six of this article, or payments thereunder, shall not be or be

construed to be the making of a building loan contract within the

meaning of this section.

Except that this section shall not apply to any mortgage taken by the

home owners' loan corporation, a corporation created under an act of

congress, known as the "home owners' loan act of nineteen hundred

thirty-three" and the "home owners' loan act of nineteen hundred

thirty-three as amended," and said mortgage shall have priority over any

and all liens filed subsequent to the date of the recording of said

mortgage whether or not the cash and/or bonds for which said mortgage

has been taken as security, shall have been advanced at the time of the

execution of such mortgage or subsequent thereto, and it shall not be

necessary to execute and file any building loan contract or any other

contract, in compliance with this section or any part thereof.

Where the county clerk indexes liens in a block index, every building

loan contract presented to the clerk for filing, in order to entitle the

same to be filed, shall contain in the body thereof, or shall have

endorsed thereon, a designation of the number of every block, on the

land map of the county, which is affected by the building loan contract.

The county clerk shall cause such building loan contract to be entered

in the block index, under the block number of every block so designated.

In cases where a building loan contract shall have been filed without

such designation or with an erroneous designation, the county clerk, on

presentation of proper proof thereof, shall enter such instrument in the

proper index, under the proper block number of every block in which the

land affected is situated, and shall, at the same time, make a note of

such entry and of the date thereof in every place in which such

instrument may have been erroneously indexed, opposite the entry

thereof, and also upon the instrument itself, if the same be in his

possession or produced to him for the purpose, and the filing of such

instrument shall be constructive notice as to property in the block not

duly designated at the time of such filing only from the time when the

same shall be properly indexed.

A county clerk may adopt a new indexing system utilizing

electro-mechanical, electronic or any other method he deems suitable for

maintaining the indexes.

Construction of article. This article is to be construed

liberally to secure the beneficial interests and purposes thereof. A

substantial compliance with its several provisions shall be sufficient

for the validity of a lien and to give jurisdiction to the courts to

enforce the same.

Enforcement of mechanic's lien. The mechanics' liens 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.

Priority of liens and assignments under contracts for public

improvements. Parity of liens of same class. In an action to enforce a

lien under a contract for a public improvement, or an assignment of

moneys, or any part thereof, due or to become due under such contract,

parties having liens and parties having assignments unless such

assignments be set aside as diversions of trust assets as provided in

article three-a of this chapter shall have priority as follows:

(1). Except as provided in section five an assignee of moneys, or any

part thereof, due or to become due under a contract for public

improvement, whose assignment is duly filed prior to the filing of a

notice of lien or assignment of every other party to the action, shall

have priority over those parties to the extent of advances made upon

such assignment before the filing of the notice of lien or assignment

next subsequent to his assignment, but as to advances made subsequent to

a notice of lien or assignment filed and unsatisfied or not discharged

such assignee for the purpose of determining his proportionate share of

moneys available for distribution as provided in subdivision four of

this section shall be treated as a lienor having a lien to the extent of

advances so made.

(2) An assignee of moneys or any part thereof, due or to become due

under a contract for a public improvement whose assignment is duly filed

subsequent to the filing of the notice of lien or assignment of any

other party shall for the purpose of determining his proportionate share

of moneys available for distribution, as provided in subdivision four of

this section be treated as a lienor having a lien to the extent of

advances actually made upon such assignment prior to the filing thereof.

(3) Laborers for daily or weekly wages having liens under a contract

for a public improvement, shall have preference as a class for the full

amount of their unpaid wages over all other lienors having liens arising

under the same contract and without reference to the time when such

laborers shall have filed their notices of liens.

(4) There shall be no priority among labor lienors, as a class or

among other lienors as a class, and any moneys available for

distribution among lienors of any class shall be distributed pro rata in

accordance with their respective valid liens.

(5) Every assignment of moneys, or any part thereof, due or to become

due under a contract for a public improvement shall contain a covenant

by the assignor that he will receive any moneys advanced thereunder by

the assignee and will hold the right to receive such moneys as a trust

fund to be first applied to the payment of trust claims as defined in

section seventy-one of the lien law, and that he will apply the same to

such payments only, before using any part of the moneys for any other

purpose.

Subordination of liens after agreement with owner. In case an

owner of real property shall execute to one or more persons, or a

corporation, as trustee or trustees, a bond and mortgage or a note and

mortgage 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

certificates 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 building loan contract or over the

advances made thereunder, by reason of any act preceding the making and

approval of such assignment.

Lien of certain judgments postponed. Upon the filing of the

written instrument or instruments of approval under section twenty-six

of this article, the lien of all money judgments and attachments

affecting such real property, or the moneys due under a contract, and

all claims and liens acquired in any proceedings upon any money

judgment, shall be subordinate in like manner and to like extent as

provided in said section for the subordination of mechanics' liens, and

any attachment issued or money judgment 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 or for the

public improvement, shall be subordinate to all mechanics' liens thereon

and shall also be subordinate to all judgments recovered upon and

attachments issued upon claims for materials furnished, labor performed

or moneys advanced for the improvement of such real property.

Subordination of liens to subsequent mortgage. In case an owner

of real property upon which an improvement is being or has been made,

desires to obtain a loan by executing and delivering a bond or bonds or

note or notes secured by a mortgage upon such real property, or any part

thereof, and in case lienors having mechanics' liens against such real

property, or any part thereof, notices of which have been filed prior to

the recording of such mortgage, and which said 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 notices of such

liens have been so filed, by an instrument or instruments in writing,

duly acknowledged, designate and authorize one or more persons to

consent to the execution and delivery of such bond and mortgage or note

and mortgage, and in case the consent in writing, duly acknowledged, of

such person or persons to the execution and delivery of such bond and

bonds and mortgage or note and notes and mortgage shall be filed in the

office of the clerk of the county where such real property is situated,

together with such instrument or instruments of designation, then all

mechanics' liens for labor performed and materials furnished prior to

the recording of such mortgage whether notices thereof have been

theretofore or are thereafter filed, shall be subordinate to the lien of

such bond or bonds and mortgage or note or notes and mortgage to the

extent of the full amount which shall be advanced thereunder provided

such mortgage contains the covenant prescribed in subdivision three of

section thirteen of this chapter. In case such person or persons so

designated and authorized shall so consent to the execution and delivery

of such bond and mortgage or note and mortgage but on condition that a

sum of money be deposited with the clerk of such county, and such sum is

so deposited, the county clerk, upon such payment, shall forthwith enter

upon the lien docket, indexed with the name of the owner, the facts

relating to such payment. A deposit of money made as prescribed in this

section shall be repaid to such owner or his assignee upon the discharge

or release of all mechanics' liens, judgments and attachments against

the property. All deposits of money made as provided in this section

shall be considered as paid into court and shall be subject to the

provisions of law relative to the payment of money into court and the

surrender of such money by order of the court. The court shall in any

action brought to foreclose any of such liens, or in any action brought

to recover such deposit or any part thereof, direct the payment of such

sum so deposited to the persons whose mechanics' liens, judgments, or

claims secured by attachment shall have been established on the trial

and the amount so paid shall be credited upon such mechanics' liens,

judgments and claims. Upon such filing of such consent, as hereinbefore

provided, the lien of all judgments and attachments affecting such real

property and all claims and liens acquired in any proceedings upon such

judgments shall be subordinate in like manner and to like extent as

hereinbefore in this section provided for the subordination of

mechanics' liens, and any attachment issued or judgment recovered upon a

claim, which, in whole or in part, is not for materials furnished, labor

performed or moneys advanced for the improvement of such property shall

be subordinate to all mechanics' liens thereon, and shall also be

subordinate to all judgments recovered upon and attachments issued upon

claims for materials furnished, labor performed or moneys advanced for

the improvement of such real property. Any lienor having a mechanic's

lien against real property may subordinate such lien to any subsequent

mortgage thereon by a certificate duly acknowledged or proved stating

that such lien is subordinated, which certificate shall be filed in the

office where the notice of lien is filed. Upon filing such certificate,

the county clerk in the office where the same is filed shall note the

fact of such filing in the "lien docket" in the column headed

"proceedings had," opposite the docket of such lien.

Subordination of notices of lis pendens. In case of

subordination pursuant to the provisions of sections twenty-six,

twenty-eight or twenty-nine of this article all actions and proceedings

upon such mechanics' liens and all notices of pendency of actions in any

action brought to foreclose the same and all proceedings upon judgments

and attachments, shall be subordinate in like manner and to like extent

as provided in said sections, respectively, for the subordination of

mechanics' liens, judgments and attachments.

Discharge of liens on sale of real property. In case an owner of

real property upon which an improvement is being or has been made,

desires to convey or transfer an interest in such real property or any

part thereof, and in case lienors having mechanics' liens against such

real property, or any part thereof, notices of which were filed prior to

the making of the deposit hereinafter in this section mentioned, and

which said 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 liens have been so filed, by an instrument or

instruments in writing, duly acknowledged, designate and authorize one

or more persons to consent to the execution and delivery of a deed or

deeds conveying said real property or any part thereof, and in case the

consent in writing, duly acknowledged, of such person or persons to the

execution and delivery of such deed or deeds, and which said consent

shall be conditioned for the deposit of a specified sum of money with

the clerk of such county, shall be filed in the office of the clerk of

the county where such real property is situated, together with such

instrument or instruments of designation, then on the deposit of such

specified sum with such county clerk all mechanics' liens, judgments and

attachments, and all claims and liens acquired in any proceeding upon

such judgments or under such attachments against such real property

shall from the time of such deposit cease to be liens or encumbrances

upon such real property, and such real property shall thenceforth be

free and discharged from the same, and the same shall thenceforth be

liens upon such sum so deposited and said county clerk upon such deposit

being made shall forthwith enter upon the lien docket, indexed with the

name of such owner, the facts relating to such deposit. A deposit of

money made as prescribed in this section shall be repaid to such owner

or his assignee upon the discharge or release of all such mechanics'

liens, judgments and attachments. All deposits of money made as provided

in this section shall be considered as paid into court and shall be

subject to the provisions of law relative to the payment of money into

court and the surrender of such money by order of the court. The court

shall in any action brought to foreclose any of such liens or in any

action brought to recover such deposit or any part thereof, direct the

payment of such sum so deposited to the persons whose mechanics' liens,

judgments, or claims secured by attachment shall have been established

upon the trial, and the amount so paid shall be credited upon such

mechanics' liens, judgments and claims. Upon such deposit being made as

hereinbefore provided the lien of all judgments and attachments

affecting such real property, and all claims and liens acquired in any

proceedings upon such judgments or under attachments shall be liens upon

such deposit. All judgments recovered upon the attachments issued upon a

claim which, in whole or in part, is not for materials furnished, labor

performed or moneys advanced for the improvement of such real property,

shall be subordinate as a lien upon such sum so deposited to all

mechanics' liens thereon, and shall also be subordinate to all judgments

recovered upon and attachments issued upon claims for materials

furnished, labor performed or moneys advanced for the improvement of

such real property. In case such consent shall be conditioned also for

the giving to one or more persons or a corporation as trustee or

trustees any other property real or personal then any cash thereafter

from time to time tendered by such trustee or trustees to such county

clerk shall be received and held by such county clerk as though the same

were part of the specified sum of money for the deposit of which such

consent was conditioned, and for the same purposes and subject to the

same provisions as in this section provided therefor.

Certain liens and claims not to be affected. The amendments

contained in this act shall not apply to mechanics' liens, building loan

contracts, mortgages, assignments and orders referred to in section

fifteen, attachments, judgments, or to claims or liens acquired in any

action or proceeding upon such mechanics' liens, building loan

contracts, mortgages, assignments and orders, attachments or judgments,

filed, recorded, docketed, entered or obtained, or to contracts for the

improvement of real property made, prior to the date when this chapter,

as amended, takes effect.

Certain sections not to apply to laborers' liens. None of the

provisions contained in sections twenty-six, twenty-eight, twenty-nine

and thirty-one of this article shall apply to liens of laborers for

daily or weekly wages.

Waiver of lien. Notwithstanding the provisions of any other law,

any contract, agreement or understanding whereby the right to file or

enforce any lien created under article two is waived, shall be void as

against public policy and wholly unenforceable. This section shall not

preclude a requirement for a written waiver of the right to file a

mechanic's lien executed and delivered by a contractor, subcontractor,

material supplier or laborer simultaneously with or after payment for

the labor performed or the materials furnished has been made to such

contractor, subcontractor, material man or laborer nor shall this

section be applicable to a written agreement to subordinate, release or

satisfy all or part of such a lien made after a notice of lien has been

filed.

Waiver of arbitration; arbitrators' award conclusive. The filing

of a notice of lien shall not be a waiver of any right of arbitration of

a contractor, subcontractor, material man or laborer secured to him by

his contract to furnish labor or materials. In case the arbitrators, in

any arbitration proceeding had pursuant to any such contract, shall

determine the value or price of labor performed or material furnished,

their award shall be conclusive as between all parties to the

arbitration in any action to foreclose the lien.

Bond to discharge all liens. (1) The owner or contractor between

whom a contract exists for the improvement of real property may, either

before or after the commencement of the improvement, execute as a

principal, a bond to the county clerk of the county where the premises

are situated in such amount as the supreme court of this state, or any

justice thereof, or the county court or the county judge of such county

may direct, which shall not be less than the amount then unpaid under

such contract, conditioned for the payment of any judgment or judgments

which may be recovered in any action brought for the enforcement of any

and all claims, notices of which may be filed as in this section

provided, arising by virtue of labor performed or materials furnished in

or about the performance of any such contract. As many such bonds may be

executed as there are contractors employed upon the improvement.

(2) Such a bond must be executed as a surety by a fidelity or surety

company authorized to do business in this state, and to which a

certificate of solvency has been issued and is unrevoked pursuant to

section one thousand one hundred eleven of the insurance law.

(3) Such bond shall recite the name of the owner, the name of the

contractor, the name of the surety company, the date and amount of the

contract, and shall contain a description of the real property upon

which the improvement is to be made, is being made, or has been made;

such description shall be sufficient if it complies with the

requirements in respect thereto prescribed for a notice of lien.

(4) Upon the approval of any such bond by such court, judge or justice

thereof and upon the filing of such bond with the county clerk of the

county where the real property is situated, an order shall be made by

such court, judge or justice discharging such property from the lien of

each and every contractor, subcontractor, material man or laborer

performing labor or furnishing materials in or about the performance of

the contract described in such bond. After the filing of such bond, the

owner and the contractor named therein shall no longer be obligated to

comply with the provisions of section eight of this chapter insofar as

said provisions may relate to or in any way affect the contract,

described in said bond, or the rights of any person performing labor or

furnishing materials in or about the performance thereof.

(5) A contractor, subcontractor, laborer or material man who performs

labor or furnishes materials in or about the performance of the contract

described in such bond shall have a claim, which shall attach against

and be secured by such bond, for the principal and interest of the

value, or the agreed price, of such labor and materials. Within the

meaning of the provisions of this section, materials actually

manufactured for but not delivered to the real property, shall also be

deemed to be materials furnished.

The claimant in order to perfect his claim shall within the time

prescribed in this chapter for the filing of a notice of lien, file a

notice of claim in the office of the clerk of the county where such bond

is filed. Any such claimant who has so perfected his claim may bring an

action on the bond for the enforcement thereof in any court where an

action might have been brought if such claim were a lien filed against

such real property.

(6) The notice of claim shall state: (1) the name and residence of the

claimant; and if the claimant 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 names of the owner,

contractor and surety named in the bond; (3) the name of the person by

whom the claimant was employed or to whom he furnished or is to furnish

materials; (4) the labor performed or materials furnished, including

also materials actually manufactured for but not delivered to the real

property, and the agreed price or value thereof; (5) the amount unpaid

to the claimant for such labor or materials; (6) a description of the

real property such as is required for a notice of lien.

The notice of claim shall be verified by the claimant or his agent in

the form required for the verification of notices in section nine of

this chapter.

(7) The plaintiff in such an action must, prior to the commencement

thereof, file in the office of the clerk of the county where the bond is

filed, the summons and complaint in such action and shall join as

parties defendant, the principal and surety on the bond, the contractor,

and all claimants who have filed notices of claim prior to the date of

the filing of such summons and complaint. In case a claimant files his

notice of claim on or after the date of such filing of such summons and

complaint he may be brought in by amendment at any time up to and

including the time and in the manner and under the conditions that a

lienor may be brought into an action to foreclose a lien pursuant to

section sixty-two of this chapter.

(8) The court may adjust and determine the equities of all the parties

to the action and render an appropriate judgment. In case a counterclaim

is set forth by any defendant, such defendant shall be deemed to have

waived a trial by jury of the issues raised thereby.

(9) An action upon such a bond shall be begun within one year after

the completion of the improvement, or if the work thereon is abandoned,

then within two years after the last item of work was performed or the

last item of materials was furnished by the claimant. The beginning of

the action by the plaintiff-claimant shall be deemed a bringing of the

action by each defendant-claimant made a party thereto.

(10) The county clerk of each county shall provide and keep a book

called the "lien bond docket," which shall be suitably ruled in columns

headed "owner," "contractor," "claimant," "property," "surety," "amount

of bond," "time of filing," "amount of claim," "proceedings had," in

each of which he shall write the particulars of the notice of claim

property belonging therein. The date, hour and minute of the filing of

notice of each claim and of the filing of the summons and complaint in

any action commenced on said bond shall be entered in the proper column.

The names of the owners shall be arranged in such book in alphabetical

order. The validity of the claim and the right to file a notice thereof

shall not be affected by the death of the principal before notice of the

claim is filed.

(11) In the event that notwithstanding the provisions of this section

a contractor, subcontractor, material man or laborer, whose lien has

been discharged in the manner provided in this section, shall thereafter

file a notice of lien against the real property, then upon application

of the owner or contractor to the supreme court of this state or any

justice thereof or the county court or the county judge of the county

where such notice of lien is filed and upon proof that the bond approved

and filed as in this section provided secures the payment of the claim

set forth in any such notice of lien, the court, justice or judge

thereof shall make an order discharging such lien. In any such case a

copy of the bond and notice of the time and place of making such

application for such order to discharge any such lien shall be served

upon the lienor or his attorney not less than two days before such time.

(12) A claim which has been perfected by the filing of a notice of

claim may be discharged as follows: (1) By the certificate of the

claimant duly acknowledged or proved and filed in the office where the

notice of claim is filed, stating that the claim is satisfied and may be

discharged; (2) By failure to begin an action as and within the time

provided in this section.

Itemized statement may be required of lienor. A lienor who has

filed a notice of lien shall, on demand in writing, deliver to the owner

or contractor making such demand a statement in writing 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. 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.

Lien wilfully exaggerated is void. In any action or proceeding

to enforce a mechanic's lien upon a private or public improvement 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.

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 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 discharging the lien,

reasonable attorney's fees for services in securing the discharge of the

lien, and 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.

Repossession of materials not used. If for any reason after

the work of a private or a public improvement of real property is

abandoned by an owner, a contractor or a subcontractor before the

completion thereof by such owner, contractor or subcontractor, or if,

after the same is completed, materials delivered are not used therefor,

a person who has delivered materials for the improvement which have not

been incorporated therein and for which he has not received payment may

repossess and remove such materials; and thereupon he shall have no lien

on the real property or improvements against persons secondarily liable,

for the price thereof, but he shall have the same rights in regard to

the materials as if he had never parted with the possession. This right

to repossess and remove the materials shall not be affected by their

sale, encumbrance, attachment, or transfer from the site of the

improvement, except that, if the materials have been so transferred, the

right to repossess them shall not be effective as against a purchaser or

encumbrancer thereof in good faith whose interest therein shall have

arisen since such transfer from the site of the improvement, or as

against a creditor attaching after such transfer. The right to

repossession and removal given by this section shall extend only to

materials whose purchase price does not exceed the amount remaining due

to the person repossessing; but where materials have been partly paid

for, the person delivering them may repossess them as allowed in this

section on refunding the part of the purchase price which has been paid

less the cost of removal.

Construction of article. This article is to be construed in

connection with article two of this chapter, and provides proceedings

for the enforcement of liens for labor performed and materials furnished

in the improvement of real property, created by virtue of such article.

Enforcement of mechanic's lien on real property. A mechanic'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 otherwise 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.

Enforcement of a lien under contract for a public improvement. A

lien for labor done or materials furnished for a public improvement may

be enforced against the funds of the state or the public corporation for

which such public improvement is constructed or demolished, to the

extent prescribed in article two of this chapter, and against the

contractor or subcontractor liable for the debt, by a civil action, in

the same court and in the same manner as a mechanic's lien on real

property.

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 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.

Parties to an action in a court of record. In an action in a

court of record to enforce a lien against real property or a public

improvement, the following are necessary parties defendant:

1. All lienors having liens notices of which have been filed against

the same real property or public improvement, or any part thereof, prior

to the filing of the notice of lis pendens in such action, where by law

the filing of a notice of lis pendens is proper or required.

2. All persons having subsequent liens or claims against such real

property, by judgment, mortgage or otherwise, filed, docketed or

recorded prior to the filing of the notice of lis pendens, where by law

the filing of a notice of lis pendens is proper or required.

3. All persons appearing by the records in the office of the county

clerk or register to be owners of such real property or any part

thereof.

4. Where by law, a notice of lis pendens may not be filed in such

action, all lienors having liens notices of which have been filed

against the same real property, and all persons having subsequent liens

or claims against such real property, by judgment, mortgage or

otherwise.

5. Every defendant who is a lienor shall, by answer in the action, set

forth his lien, or he will be deemed to have waived the same, unless the

lien is admitted in the complaint, and not contested by another

defendant. The allegations is the answer of a defendant lienor shall be

deemed denied by the other lienors in said action without the necessity

of serving replies. Two or more lienors having liens notices of which

have been filed against the same real property or public improvement, or

any part thereof, may join as plaintiffs.

6. The state, when the lien is one filed against funds of the state

for which the public improvement is constructed or demolished. In such a

case, the summons must be served upon the attorney-general, who must

appear in behalf of the people.

Foreclosure of mortgage; lienors defendants. In an action to

foreclose a mortgage upon such real property only such persons who shall

have filed notices of lien prior to the filing of the notice of lis

pendens in such action shall be deemed to be necessary parties to such

action.

Necessary parties; lien against public or private improvement.

Notwithstanding any inconsistent provision of section forty-four of this

article, any private owner or the state or a public corporation with

which a notice of lien is filed shall not be a necessary party defendant

in an action to enforce the lien if, either before or after the

commencement of the action, a contractor or subcontractor, (a) in the

case of a public improvement, executes a bond or undertaking, in

accordance with subdivision five of section twenty-one of this chapter,

to the state or the public corporation with which the notice of lien is

filed conditioned for the payment of any judgment that may be recovered

in an action to enforce the lien or, (b) in the case of a private

improvement, executes a bond or undertaking in accordance with

subdivision four of section nineteen of this chapter, to the county

clerk with which the notice of lien is filed conditioned for the payment

of any judgment that may be recovered in an action to enforce the lien.

Equities of lienors to be determined. The court may adjust and

determine the equities of all the parties to the action and the order of

priority of different liens, and determine all issues raised by any

defense or counterclaim in the action. But in no case shall the court

determine any issue between the state and the contractor where a claim

has been or can be submitted to the court of claims for adjudication and

in case a counterclaim is set forth by any defendant in his answer, such

defendant shall be deemed to have waived a trial by jury of the issues

raised thereby.

Action in a court not of record. If an action to enforce a

mechanic'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. 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

publication, after the day of the last publication of the summons.

Service must be made at least eight days before the return day.

How summons served, when personal service cannot be made. If

personal service of the summons cannot be made upon a defendant in an

action in a court not of record, by reason of his absence from the

state, or his concealment therein, such service may be made by leaving a

copy thereof at his last place of residence and by publishing a copy of

the summons once in each of three successive weeks in a newspaper in the

city or county where the property is situated.

Proceedings on return of summons; answer; judgment by default.

At the time and place specified in the summons for the return thereof,

in a court not of record, issue must be joined, if both parties appear,

by the defendant filing with the justice a verified answer, containing a

general denial of each allegation of the complaint, or a specific denial

of one or more of the material allegations thereof; or any other matter

constituting a defense to the lien or to the claim upon which it is

founded. If the defendant fail to appear on the return-day, on proof by

affidavit of the service of the summons and complaint, judgment may be

rendered for the amount claimed, with costs.

Issue, how tried; judgment. If issue is joined in such action in

a court not of record, it must be tried in the same manner as other

issues in such court, and judgment entered thereon, which shall be

enforced, if for the plaintiff, in the manner provided in the following

section. If for the defendant, in the same manner as in an action on

contract in such court.

Execution. Execution may be issued upon a judgment obtained in

an action to enforce a mechanic'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.

Appeals from judgments in courts not of record. An appeal may be

taken from such judgment rendered in a court not of record, according to

the provisions of law regulating appeals from judgments in actions on

contract in such courts.

Transcrips of judgments in courts not of record. When a judgment

is rendered in a court not of record, the justice or judge of the court

in which it is tried, or other person authorized to furnish transcripts

of judgments therein, shall furnish the successful party a transcript

thereof, which he may file with the clerk of the county with whom the

notice of lien is filed. The filing of such transcript has the same

effect as the filing of a transcript of any other judgment rendered in

such courts.

Costs and disbursements. If an action is brought to enforce a

mechanic'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 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.

Judgment in case of failure to establish lien. If the lienor

shall fail, for any reason, to establish a valid lien in an action under

the provisions of this article, he may recover judgment therein for such

sums as are due him, or which he might recover in an action on a

contract, against any party to the action.

Offer to pay money into court, or to deposit securities, in

discharge of the lien. At any time after an action is brought under the

provision of this article, the owner may make and file with the clerk

with whom the notice of lien is filed, if in a court of record, and if

in a court not of record, with the court, an offer to pay into court the

sum of money stated therein, or to execute and deposit securities which

he may describe, in discharge of the lien, and serve upon the plaintiff

a copy of such offer. If a written acceptance of the offer is filed with

such clerk, or court, within ten days after its service, and a copy of

the acceptance is served upon the party making the offer, the court,

upon proof of such offer and acceptance, may make an order, that on

depositing with such clerk, or court, the sum so offered, or the

securities described, the lien shall be discharged, and that the money

or securities deposited shall take the place of the property upon which

the lien existed, and shall be subject to the lien. If the offer is of

money only, the court, on application and notice to the plaintiff may

make such order, without the acceptance of the offer by the plaintiff.

If such action is brought in a court not of record, such order may be

made by the county court of the county where such action is brought upon

notice, and upon filing such order and depositing such sum of money or

securities with the county clerk of such county, he shall forthwith

discharge said notice of lien, by writing upon the margin of the record

thereof, the words "discharged by payment." Money or securities

deposited upon the acceptance of an offer pursuant to this section shall

be held by the clerk or the court until the final determination of the

action, including an appeal.

Preference over contractors. When a laborer, subcontractor or

material man shall perform labor or furnish materials for an improvement

of real property or for a public improvement, for which he is entitled

to a mechanic's lien, the amount due to him shall be paid out of the

proceeds of the sale of such property or out of the moneys of the state

or public corporation applicable to the construction or demolition of

the public improvement, under any judgment rendered pursuant to this

article, before any part of such proceeds is paid to the person for whom

he has performed such labor or furnished such materials. If several

notices of lien are filed for the same claim, as where the contractor

has filed a notice of lien, for the services of his workmen, and the

workmen have also filed notices of lien, the judgment shall provide for

but one payment of the claim which shall be paid to the parties entitled

thereto. Payment voluntarily made upon any claim filed as a lien shall

not impair or diminish the lien of any person except the person to whom

the payment was made.

Judgment may direct delivery of property in lieu of money. If

the owner has agreed to deliver bills, notes, securities or other

obligations or any other species of property, in payment of the debt

upon which the lien is based, the judgment may direct that such

substitute be delivered or deposited as the court may direct, and the

property affected by the lien cannot be sold, by virtue of such

judgment, except in default of the owner to so deliver or deposit within

the time directed by the court.

Judgment for deficiency. If upon the sale of the property under

judgment in a court of record there is a deficiency of proceeds to pay

the plaintiff's claim, judgment may be docketed for the deficiency

against any person liable therefor, who shall be adjudged to pay the

same in like manner and with like effect as in judgments for deficiency

in foreclosure cases.

Vacating of a mechanic's lien; cancellation of bond; return of

deposit, by order of court. 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 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.

Judgment in action to foreclose lien on account of public

improvement. If, in an action to enforce a lien on account of a public

improvement, the court finds that the lien is established, it shall

render judgment directing the state or the public corporation to pay

over to the lienors entitled thereto for work done or material furnished

for such public improvement, to the extent of the sums found due the

lienors from the contractors, so much of the funds or money which may be

due from the state or public corporation to the contractor, as will

satisfy such liens, with interest and costs, not exceeding the amount

due to the contractor. If it appears in any proceeding in which the

state is a party that a claim has been or can be filed against the state

in the court of claims, or if it is alleged upon the part of the state

that the contractor has breached the contract, then the court may render

judgment only to the extent of determining the establishment of the lien

or liens, and the amount or amounts thereof.

Judgment in action to foreclose a mechanic's lien on property of

a railroad corporation. If the lien is for labor done or materials

furnished for a railroad corporation, upon its land, or upon or for its

track, rolling stock or the appurtenances of its railroad, the judgment

shall not direct the sale of any of the real property described in the

notice of the lien, but when in such case, a judgment is entered and

docketed with the county clerk of the county where the notice of lien is

filed, or a transcript thereof is filed and docketed in any other

county, it shall be a lien upon the real property of the railroad

corporation, against which it is obtained, to the same extent, and

enforceable in like manner as other judgments of courts of record

against such corporation.

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 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 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.

Service of answer on state or public corporation. In an action

to foreclose a lien for a public improvement each defendant named in the

original summons shall within forty days after the service of the

complaint on him serve upon the state or public corporation, a copy of

his answer When the city of New York is a party such service shall be

made on the corporation counsel.

Award of personal judgment by court or referee. A court or

referee in any action heretofore or hereafter brought may at any time

award a money judgment in favor of any party. This shall not preclude

the rendition of other judgments in the action. Any payment made on

account of either judgment in favor of a party shall be credited on the

other judgment.

Arrears/past due support. 1. The New York state office of

temporary and disability assistance, or a local social services

district, or its authorized representative, on behalf of persons

receiving services under title six-A of article three of the social

services law, shall have a lien against real property owned by a support

obligor when such support obligor is or was under a court order to pay

child support or combined child and spousal support to a support

collection unit and such support obligor has accumulated support

arrears/past due support in an amount equal to or greater than the

amount of support due pursuant to such order for a period of four

months. Such lien shall be in an amount sufficient to satisfy the

support arrears/past due support. Such lien shall be enforceable upon

filing a notice of lien in the office of the clerk of the county in

which real property subject to any such lien is situated. In the event

the real property is located in more than one county, filing shall occur

in the office of the clerk in each county where the real property is

situated. The county clerk of each county shall accept and maintain the

notice of lien as part of a comprehensive index of liens against real

property. If a child support obligor against whom a lien is filed

subsequently acquires an interest in real property, the lien shall be

perfected and have effect upon the recording or filing of the instrument

by which such interest is obtained. The filing of notice of lien or a

release of lien may be done by electronic means and without payment of a

fee.

2. Said lien shall terminate upon payment in full of all support

arrears/past due support. The office of temporary and disability

assistance or a social services district or its authorized

representative may file a release of lien against specified property,

which action shall not of itself discharge a lien arising by operation

of law.

3. The state shall accord full faith and credit to liens which arise

in another state when such state agency, party or other entity seeking

to enforce such a lien complies with the procedural rules relating to

filing or serving liens pursuant to this section and section one hundred

eleven-u of the social services law. Such rules may not require judicial

notice or hearing prior to enforcement of such a lien.

4. For the purposes of determining whether a support obligor has

accumulated support arrears/past due support for a period of four

months, the amount of any retroactive support, other than periodic

payments of retroactive support which are past due, shall not be

included in the calculation of arrears/past due support pursuant to this

section; however, if at least four months of support arrears/past due

support have accumulated subsequent to the date of the court order, the

entire amount of any retroactive support may be collected pursuant to

the provisions of this section or as otherwise authorized by law.

Definition of trusts. 1. The funds described in this section

received by an owner for or in connection with an improvement of real

property in this state, including a home improvement loan, or received

by a contractor under or in connection with a contract for an

improvement of real property, or home improvement, or a contract for a

public improvement in this state, or received by a subcontractor under

or in connection with a subcontract made with the contractor for such

improvement of real property including a home improvement contract or

public improvement or made with any subcontractor under any such

contract, and any right of action for any such funds due or earned or to

become due or earned, shall constitute assets of a trust for the

purposes provided in section seventy-one of this chapter.

For the purposes of this section: (a) any right to receive payment at

a future time shall be deemed a right of action therefor and an asset of

the trust even though it is contingent upon performance or upon some

other event, but the fact that the right is a trust asset does not

enlarge the right or excuse any performance or condition upon which it

depends; (b) "contract" and "subcontract" shall include any modification

of the contract or subcontract to which reference is made; and (c) funds

due or earned under a contract or subcontract shall include any funds

payable to the contractor or subcontractor in addition to the contract

price by reason of any transaction, event or circumstance in the making

or in the performance of the contract or subcontract.

2. The funds received by an owner and the rights of action with

respect thereto, for or in connection with each improvement, shall be a

separate trust and the owner shall be the trustee thereof. The funds

received by a contractor or subcontractor and the rights of action with

respect thereto, under or in connection with each contract or

subcontract, shall be a separate trust and the contractor or

subcontractor shall be the trustee thereof.

3. Every such trust shall commence at the time when any asset thereof

comes into existence, whether or not there shall be at that time any

beneficiary of the trust. The trust of which the owner is trustee shall

continue with respect to every asset of the trust until every trust

claim arising at any time during the improvement has been paid or

discharged, or until all such assets have been applied for the purposes

of the trust. The trust of which a contractor or subcontractor is

trustee shall continue with respect to every asset of the trust until

every trust claim arising at any time prior to the completion of the

contract or subcontract has been paid or discharged, or until all such

assets have been applied for the purposes of the trust. Upon termination

of the trust by payment or discharge of all the trust claims, the

beneficial interest in any remaining assets shall vest in the owner,

contractor or subcontractor, as the case may be.

4. The trusts described in this section shall arise whether or not a

covenant declaring or acknowledging the trust, as required in article

two of this chapter, has been executed.

5. The assets of the trust of which the owner is trustee are the funds

received by him and his rights of action for payment thereof

(a) under a building loan contract;

(b) under a building loan mortgage or a home improvement loan;

(c) under a mortgage recorded subsequent to the commencement of the

improvement and before the expiration of four months after completion of

the improvement;

(d) as consideration for a conveyance recorded subsequent to the

commencement of the improvement and before the expiration of four months

after the completion thereof;

(e) as consideration for, or advances secured by, an assignment of

rents due or to become due under an existing or future lease or tenancy

of the premises that are the subject of the improvement, or of any part

of such premises, if the assignment is executed subsequent to the

commencement of the improvement and before the expiration of four months

after the completion of the improvement or if it is executed before the

commencement of the improvement and an express promise to make an

improvement, or an express representation that an improvement will be

made, is contained in the assignment or given in the transaction in

which the assignment is made;

(f) as proceeds of any insurance payable because of the destruction of

the improvement or its removal by fire or other casualty, except that

the amount thereof required to reimburse the owner for premiums paid by

him out of funds other than trust funds shall not be deemed part of the

trust assets;

(g) under an executory contract for the sale of real property and the

improvement thereof by the construction of a building thereon.

6. The assets of the trust of which a contractor is trustee are the

funds received by him and his rights of action for payment thereof

(a) under the contract for the improvement of real property, or home

improvement or the public improvement;

(b) under an assignment of funds due or earned or to become due or

earned under the contract;

(c) as proceeds of any insurance payable because of destruction of the

improvement of real property including a home improvement or public

improvement or its removal by fire or other casualty, except that the

amount thereof required to reimburse the contractor for premiums paid by

him out of funds other than trust funds shall not be deemed part of the

trust assets.

7. The assets of the trust of which a subcontractor is trustee are the

funds received by him and his rights of action for payment thereof

(a) under the subcontract;

(b) under an assignment or order for the payment of moneys due or

earned or to become due or earned under the subcontract;

(c) as proceeds of any insurance payable because of the destruction of

the improvement of real property or public improvement or its removal by

fire or other casualty, except that the amount thereof required to

reimburse the subcontractor for premiums paid by him out of funds other

than trust funds shall not be deemed part of the trust assets.

8. For the purposes of this article, the term "home improvement

contract" shall have the meaning ascribed to it by section seven hundred

seventy of the general business law, and the term "home improvement

loan" shall mean any loan obtained for the purpose of financing a home

improvement. The term "home improvement" shall mean the repairing,

remodeling, altering, converting, or modernizing of, or adding to

residential property, including but not limited to the construction,

erection, replacement, or improvement of driveways, swimming pools,

siding, insulation, roofing and windows, terraces, patios, landscaping,

fences, porches, garages, solar energy systems, flooring, basements, and

other improvements of the residential property and all structures or

land adjacent to it.

Purpose of the trust; "trust claims"; "beneficiaries." 1. The

trust assets of which an owner is trustee under subdivisions five (a) to

five (f), inclusive, of section seventy of this chapter shall be held

and applied for payment of the cost of improvement. The trust assets of

which an owner is trustee under subdivision five (g) of section seventy

of this chapter shall be held and applied for payment of the cost of

improvement and, in addition, for the purposes of the further trust

provided in section seventy-one-a of this chapter.

2. The trust assets of which a contractor or subcontractor is trustee

shall be held and applied for the following expenditures arising out of

the improvement of real property, including home improvement or public

improvement and incurred in the performance of his contract or

subcontract, as the case may be:

(a) payment of claims of subcontractors, architects, engineers,

surveyors, laborers and materialmen;

(b) payment of the amount of taxes based on payrolls including such

persons and withheld or required to be withheld and taxes based on the

purchase price or value of materials or equipment required to be

installed or furnished in connection with the performance of the

improvement;

(c) payment of taxes and unemployment insurance and other

contributions due by reason of the employment out of which such claims

arose;

(d) payment of any benefits or wage supplements, or the amounts

necessary to provide such benefits or furnish such supplements, to the

extent that the trustee, as employer, is obligated to pay or provide

such benefits or furnish such supplements by any agreement to which he

is a party;

(e) payment of premiums on a surety bond or bonds filed and premiums

on insurance accrued during the making of the improvement, including

home improvement, or public improvement;

(f) payment to which the owner is entitled pursuant to the provisions

of section seventy-one-a of this chapter.

3. (a) With respect to the trust of which an owner is trustee, "trust

claims" means claims of contractors, subcontractors, architects,

engineers, surveyors, laborers and materialmen arising out of the

improvement, for which the owner is obligated, and also means any

obligation of the owner incurred in connection with the improvement for

a payment or expenditure defined as cost of improvement.

(b) With respect to the trusts of which a contractor or subcontractor

is trustee, "trust claims" means claims arising at any time for payments

for which the trustee is authorized to use trust funds as provided in

subdivision two of this section.

(c) No claim acquired by the trustee by assignment or otherwise shall

be a trust claim after it has been so acquired.

4. Persons having claims for payment of amounts for which the trustee

is authorized to use trust assets as provided in this section are

beneficiaries of the trust whether or not they have filed or had the

right to file a notice of lien as provided in article two of this

chapter or shall have recovered a judgment therefor. Where an owner

becomes obligated to incur an expenditure as part of the cost of

improvement, any person to whom he is so obligated is a beneficiary.

5. For the purposes of this article, every trust claim shall be deemed

to be in existence from the time of the making of the contract or the

occurrence of the transaction out of which the claim arises and, except

as provided in section seventy-six and section seventy-seven, the rights

of each member of the class of beneficiaries accrue at the making of the

contract or the occurrence of the transaction out of which the claim

arises.

Further trust of funds received or receivable by owner under

executory contract for the sale and improvement of real property. 1. As

used in this section,

(a) A "contract of sale" is an executory contract for the sale of real

property and the improvement thereof by the construction of a building

thereon.

(b) "Advances" include funds received by the owner and his rights of

action for payment thereof.

2. (a) Advances made by or on behalf of a vendee of real property to

the owner under or pursuant to a contract of sale shall constitute

assets of a trust, as defined in this section, of which the owner is

trustee, notwithstanding that such advances may also be assets of a

trust defined in section seventy of this chapter.

(b) Such advances shall be held and applied by the owner for the

payment of the cost of improvement. The trust claims defined in

subdivision three (a) of section seventy-one of this chapter shall have

priority over trust claims which the vendee has under the further trust

provided in this section. Advances shall cease to be subject to the

further trust provided in this section after they have been applied by

the owner for payment of the cost of improvement, provided that no part

of the advances shall be applied or be deemed applied for payment of the

cost of improvement until all trust assets, as defined in subdivisions

five (a) to five (f), inclusive, of section seventy of this chapter,

which have been received by the owner from all other sources, have been

exhausted.

(c) Such advances, or any portion thereof remaining after application

of such advances for payment of the cost of improvement, shall continue

to be held in trust by the owner for the benefit of the vendee, until

the trust is terminated (i) by the owner's performance of the terms of

the contract of sale, or (ii) by a default of the vendee excusing the

owner's performance of the terms of the contract of sale, or (iii) by

release or discharge of the owner's liability to refund such advances to

the vendee.

(d) Until the further trust is terminated as provided in this section,

such advances shall not be applied by the owner for any purpose other

than payment of the cost of improvement and satisfaction of any

liability of the owner to refund such advances, or any part thereof, to

the vendee. Upon termination of the said trust, the beneficial interest

in such advances or any portion thereof remaining in the hands of the

owner shall vest in the owner, provided that all trust claims applicable

to such advances have been paid or discharged.

(e) Any provision whereby the vendee waives the provisions of this

section, whether contained in the contract of sale or otherwise, shall

be absolutely void.

(f) Subject to the provisions of this section, the rights and remedies

which may be exercised by a holder of trust claims with respect to

assets of a trust defined in section seventy of this chapter may be

exercised, in the same manner and to the same extent, by the vendee with

respect to such advances.

(g) The enforcement of the trust provided in this section shall not be

deemed to prohibit the vendee from seeking to enforce such additional or

alternative remedies provided by law as shall afford the vendee complete

relief.

3. (a) The initial advance pursuant to a contract of sale which by its

terms provides for or is incidental to a contract providing for the

construction on the subject real property of residential condominium

unit or any structure designed solely for residential occupancy of not

more than two families living separately, on property to be purchased

shall, at the vendee's option, be deposited within five business days

thereafter by the recipient in an interest bearing escrow account in a

bank, trust company, savings bank, state or federal savings and loan

association, located in this state. Such deposit, together with the

interest accumulated thereon, shall remain the property of the vendee

except as otherwise provided herein. The recipient shall advise the

vendee in writing of the name of the depository where the funds have

been placed within ten business days after such deposit has been made.

(b) In lieu of making the deposit of such moneys in an escrow account

as provided in paragraph (a) of this subdivision, the recipient may post

with the vendee a bond or contract of indemnity, issued by a surety

company licensed to execute such an instrument in this state,

guaranteeing the return of the moneys which otherwise would be required

to be deposited in such escrow account, in which case the recipient

shall not be required to deposit such money in an escrow account. Said

bond or contract of indemnity shall be delivered to the vendee within

ten business days after receipt of the initial advance.

(c) At any time after making the deposit of such moneys in the escrow

account, the recipient may post with the vendee a bond or contract of

indemnity issued by a surety company licensed to execute such an

instrument in this state guaranteeing the return of such moneys, in

which case the recipient shall not be required to maintain the deposit

of such moneys in such account.

(d) Such advance shall be retained in the escrow account or such bond

or contract of indemnity continued in effect until the trust is

terminated (i) by the recipient's performance of the terms of the

contract of sale, or (ii) by default of the vendee excusing the

recipient's performance of the terms of the contract of sale, or (iii)

by release or discharge of the recipient's liability to refund such

advance to the vendee, or (iv) upon transfer of title of the real

property to the vendee.

(e) Every contract of sale which by its terms provides for or is

incidental to a contract providing for the construction on the subject

real property of a residential condominium unit or a structure designed

solely for the residential occupancy by not more than two families

living apart, shall contain a statement advising the vendee of the

provisions of this subdivision. Such statement shall be printed in bold

type which is at least two points larger than any other printing

contained thereon and shall read as follows:

"YOU, AS THE PURCHASER OF THIS RESIDENCE, MAY REQUIRE THE RECIPIENT

OR CONTRACTOR TO DEPOSIT THE INITIAL ADVANCE MADE BY YOU IN AN ESCROW

ACCOUNT. IN LIEU OF SUCH DEPOSIT, THE RECIPIENT OR CONTRACTOR

MAY POST A BOND OR CONTRACT OF INDEMNITY WITH YOU

GUARANTEEING THE RETURN OF SUCH ADVANCE."

4. (a) Under a home improvement contract, payments received from an

owner by a home improvement contractor prior to the substantial

completion of work under the contract shall be deposited within five

business days thereafter by the recipient in an escrow account in a

bank, trust company, savings bank, or state or federal savings and loan

association, located in this state. No depository institution acting on

the instructions or otherwise dealing with a home improvement contractor

shall be obliged to inquire into the validity or propriety of any

deposits to or withdrawals from any escrow account established by the

home improvement contractor in compliance with this subdivision or to

insure that any withdrawals from such account are applied for any

specific purpose or purposes by the home improvement contractor. Such

deposit or deposits shall remain the property of such owner except as

otherwise provided herein. Unless the home improvement contract

specifies the name of the depositary where the funds will be placed, no

later than ten business days after the deposit has been made, the

recipient shall advise the owner in writing of the name of the

depositary where the funds have been placed. The recipient shall not be

required to keep in separate depositary accounts the funds of the

separate owners from whom payments have been received, provided his

books of account shall clearly show the allocation to each owner of the

funds deposited in his general or special depositary account or

accounts.

(b) In lieu of making the deposit of such payment or payments in an

escrow account as provided in paragraph (a) of this subdivision, the

recipient may post with the owner a bond or contract of indemnity,

issued by a surety company licensed to execute such an instrument in

this state, or an irrevocable letter of credit issued by a bank, trust

company, savings bank, or state or federal savings and loan institution

located in this state, guaranteeing the return of the payments, or the

proper application of the payments to the purposes of the contract,

which otherwise would be required to be deposited in such escrow

account, in which case the recipient shall not be required to deposit

such payments in an escrow account. Said bond or contract of indemnity

or irrevocable letter of credit shall be delivered to the owner within

ten business days after receipt of the payment.

(c) At any time after making the deposit of such payment or payments

in the escrow account, the recipient may post with the owner a bond or

contract of indemnity issued by a surety company licensed to execute

such an instrument in this state, or an irrevocable letter of credit

issued by a bank, trust company, savings bank, or state or federal

savings and loan institution located in this state, guaranteeing the

return or proper application of such payment to the purposes of the

contract, in which case the recipient shall not be required to maintain

the deposit of such payment in such account.

(d) Such deposit or deposits shall remain the property of the owner or

such bond or contract of indemnity or irrevocable letter of credit

continued in effect until (i) the proper payment, transfer or

application of such deposits by the contractor to the purposes of the

home improvement contract under the schedule of payments provided

therein; or (ii) the default or breach of the owner excusing the

recipient's performance of the terms of the home improvement contract,

but only to the extent of any reasonable liquidated damage amount as

defined in section 2-718 of the uniform commercial code and set forth in

the contract, and only after seven days prior written notice to the

owner; or (iii) substantial performance of the contract.

(e) The recipient shall not withdraw deposits from the escrow account

in excess at any time of the total amount shown in the schedule of

payments in the home improvement contract. The amount of any such

progress payments shall bear a reasonable relationship to the amount of

work to be performed, materials purchased, or expenses for which the

contractor would be obligated.

(f) If the home improvement contract provides that the home

improvement contractor will be paid on a specified hourly or time basis

for work that has been performed or charges for materials that have been

supplied prior to the time that payment is due, this subdivision shall

not apply to such payments for such work or materials.

(g) Failure to place customer deposits in escrow, except as provided

herein, shall constitute a violation of this section.

Diversion of trust funds. 1. Any transaction by which any trust

asset is paid, transferred or applied for any purpose other than a

purpose of the trust as stated in subdivision one or subdivision two of

section seventy-one, before payment or discharge of all trust claims

with respect to the trust, is a diversion of trust assets, whether or

not there are trust claims in existence at the time of the transaction,

and if the diversion occurs by the voluntary act of the trustee or by

his consent such act or consent is a breach of trust.

Nothing in this article affects the rights of a holder in due course

of a negotiable instrument or of a purchaser in good faith for value and

without notice that a transfer to him is a diversion of trust assets.

2. Trust assets shall not be levied upon or subject to a restraining

notice issued pursuant to section fifty-two hundred twenty-two of the

civil practice law and rules as the individual property of the trustee.

3. In any action or proceeding in which it is sought to apply trust

assets for a purpose other than a purpose of the trust as stated in

subdivision one or subdivision two of section seventy-one

(a) it shall be the duty of the trustee, if he is a party, to defend

the trust against such application, and if he knows of the action or

proceeding but is not a party, to make application for intervention

therein for the purpose of defending the trust;

(b) any beneficiary of the trust having a trust claim may intervene in

the action or proceeding to defend the trust against such application.

Affirmative defense in action against transferee of trust assets

or to charge trustee in certain cases; "Notice of Lending." 1. In any

action against a person to whom trust assets have been transferred, to

recover assets diverted from the trust or to recover damages for the

diversion, a transferee named in a "Notice of Lending" filed as provided

in subdivision three of this section shall be entitled to show by way of

defense that the transfer was made as security for or in consideration

of or in repayment of advances made to or on behalf of the trustee in

accordance with such notice of lending and that prior to the making of

such advances the transferee procured from the trustee the written

agreement of the trustee that he will receive the advances and will hold

the right to receive such advances as trust funds to be first applied to

the payment of trust claims as defined in section seventy-one of this

chapter, and that he will apply the same to such payments only, before

using any part of such advances for any other purpose. Subject to

subdivision four of this section, if such defense is established, the

transferee shall be entitled to a credit for the amount of the advances

with respect to which it is so established, to the extent that such

amount does not exceed the maximum amount specified in the notice of

lending filed as provided in subdivision three.

2. In any action in which it is sought to charge a trustee personally

with liability by reason of a diversion of trust assets, the trustee

shall be entitled to show by way of defense that the transfer

constituting the diversion was made to a transferee named in a "Notice

of Lending" filed as provided in subdivision three and that the transfer

was made as security for or in consideration of or in repayment of

advances made to him as trustee or on his behalf as trustee in

accordance with such notice of lending, and that such advances were

actually applied for a purpose of the trust as stated in subdivision one

or subdivision two of section seventy-one of this chapter. Subject to

subdivision four of this section, if such defense is established, the

trustee shall be entitled to a credit against any personal liability by

reason of such transfer, for the amount of the advances with respect to

which it is established, to the extent that such amount does not exceed

the maximum amount specified in the notice filed as provided in

subdivision three.

3. (a) If funds are advanced to or on behalf of a trustee, for the

purposes of the trust, either the trustee or the person advancing the

funds may file a "Notice of Lending" as provided in this subdivision. In

the case of advances to an owner or to a contractor or subcontractor for

one or more projects for the improvement of real property including a

home improvement, the notice shall be filed in the office of the county

clerk of each county where the real property improved or to be improved

to which the notice relates is situated. Such clerk shall enter the

facts relating to the notice in the "lien docket" or in another book

provided by him for such purpose. Each such notice shall be indexed by

the name of the trustee to whom or on whose behalf the advances are

made. In the case of advances to a contractor or subcontractor for one

or more projects involving a public improvement, the notice shall be

filed with the head of each department or bureau having charge of

construction of an improvement to which the notice relates and with the

financial officer of each public corporation or other officer or person

charged with the custody and disbursement of the corporate funds

applicable to the contract for each such public improvement.

(b) A notice filed pursuant to this section is effective for the

purposes of this section with respect to advances made on the day of

filing or subsequently, or made not more than five days before the date

of filing. The notice must contain: (1) a statement of the name and

address of the person making the advances, (2) a statement of the name

and address of the person to whom or on whose behalf they are made, and

whether he is owner, contractor or subcontractor, (3) in the case of

advances relating to one specific project for the improvement of real

property including a home improvement or one specific public

improvement, a description, sufficient for identification, of the

improvement and of the real property involved for which the advances are

made, and in the case of a notice of lending relating to several or

undetermined projects for the improvement of real property including a

home improvement or for public improvements, a statement of each county

wherein the real property is or may be situated, (4) the date of any

advance made on or before the date of filing for which the notice is

intended to be effective, (5) in the case of a notice of lending

relating to several or undetermined projects, the date the notice will

terminate, which termination date shall not be more than two years after

the date the notice is filed, and (6) the maximum balance of advances

outstanding to be permitted by the lender pursuant to the notice. If

real property is required to be specifically identified hereunder, the

identification shall be sufficient if it includes the name of the record

owner and the location of the real estate by street and number and town

or city or, if the real estate is in the city of New York, by county,

except that if the real estate is in the city of New York or counties of

Nassau or Onondaga, where the block system of recording or registering

and indexing conveyances is in use, the notice must also specify the

block in which the real estate is situated.

(c) A "Notice of Lending" may be continued in effect for advances made

beyond the stated termination date by filing within sixty days prior to

the termination date a subsequent notice entitled "Second Notice of

Lending" or "Third Notice of Lending", which identifies the prior notice

to which it relates and otherwise conforms to the requirements of

paragraph (b) of subdivision three of this section. The term "Notice of

Lending" as used in this section includes any amendments but if any

amendment increases the maximum balance of advances outstanding to be

permitted by the lender, it is effective as to the increased amount only

with respect to advances made not more than five days before the date of

filing the amended notice or thereafter.

(d) A "Notice of Assignment" meeting the requirements of subdivision

two of section fifteen of this chapter and filed pursuant to subdivision

one of said section shall be deemed for all purposes a "Notice of

Lending" complying with the requirements of this section.

4. Notwithstanding that the transferee, or the trustee, establishes a

defense as provided in subdivision one or subdivision two of this

section, he shall be allowed no credit by reason of such defense if it

is shown that a written demand by a trust beneficiary for a verified

statement of the amount of advances actually made to the trustee was

served personally or by registered or certified mail on the transferee,

or the trustee as the case may be, and that he failed to comply

therewith within ten days after receipt of the demand, provided, that if

either the transferee or the trustee complies with a demand so served on

him, such compliance shall be sufficient as to the other.

5. Notwithstanding any provision of this chapter or of any other law

to the contrary, moneys received pursuant to a notice of lending by an

owner, contractor or subcontractor shall be deemed to be trust assets.

Authority of trustee in administering trust funds. 1. Subject to

subdivisions two and three of this section, the trustee is authorized to

determine the order and manner of payment of any trust claims and to

apply any trust asset to any purpose of the trust.

2. The authority of the trustee provided in this section shall

terminate with respect to any trust assets as to which an order for

distribution is made as provided in section seventy-seven and before the

making of an order for distribution may be terminated or limited by

order of the court pursuant to subdivision three of section

seventy-seven.

3. This section does not limit the effect of any proceeding or order

therein by which jurisdiction of the trust assets, or any of them, is

vested in a court or by which a particular application of any asset or

of all trust assets is enforced or directed.

Deposit of funds of trust; books or records to be kept. 1. If

the trustee deposits trust funds in a bank or other depositary they

shall be deposited in his name.

The trustee shall not be required to keep in separate bank accounts or

deposits the funds of the separate trusts of which he may be trustee

under this article, provided his books of account shall clearly show the

allocation to each trust of the funds deposited in his general or

special bank account or accounts.

2. Every trustee shall keep books or records with respect to each

trust of which he is trustee and, if funds of separate trusts are

deposited in the same bank account, shall keep a record of such account

showing the allocation to each trust of the deposits therein and

withdrawals therefrom.

3. The books or records with respect to each trust shall contain the

following entries:

A. Trust assets receivable. (1) The name and address of each person

from whom the trustee has a right to receive funds constituting assets

of the trust, or will have a right to receive such funds upon or in the

course of performance of a contract or subcontract or upon some other

condition, with a statement sufficient to identify the contract or other

transaction by reason of which such moneys will become payable; (2) the

amount of each payment or advance from each such person that has become

due or earned or otherwise payable; and (3) the date upon which it

became due, earned or payable.

B. Trust accounts payable. (1) The name and address of each person to

whom the trustee has incurred an obligation constituting a trust claim,

whether or not such claim is then due, with a statement sufficient to

identify the contract or transaction out of which the trust claim

arises; (2) the amount of each trust claim that has become due, earned

or otherwise payable; and (3) the date upon which it became due, earned

or payable.

C. Trust funds received. (1) The name and address of each person from

whom funds constituting trust assets have been received in the form of

cash, check or other instrument for the payment of money, bank credit or

drawing account, or similar form available for immediate application to

trust purposes, including any instrument in form payable to a trust

beneficiary and any moneys paid directly to a trust beneficiary on

behalf of the trustee, with a description of the form in which the funds

were received; (2) the date on which each payment or remittance from

such person was received; (3) the amount received on such date; and (4)

if such funds are deposited in a bank or other depositary, the name and

address of such bank or depositary.

D. Trust payments made with trust assets. (1) The name and address of

each person to whom a payment for the purposes of the trust has been

made, with moneys or other assets constituting trust assets, including

payments made directly to such person on behalf of the trustee by a

person from whom trust assets are receivable; (2) the date when and

place where each payment was made; (3) the amount paid on each of such

dates and a statement whether the payment was made in cash or by check

and the manner of payment if made by some other person on behalf of the

trustee; (4) with respect to each such payment a statement of the nature

of the trust claim or if the owner is trustee the nature of the

expenditure other than payment of a trust claim, for which the payment

is made, sufficient in any case to identify the payment as a payment for

a trust purpose and to show whether it is for labor, materials, taxes,

insurance, performance under contract or subcontract, interest charges

on mortgages, or other particular trust claim or item of cost of

improvement; (5) if any such payment was made pursuant to contract

between the trustee and the recipient of the payment, the date when such

contract was made, whether it was oral or in writing, and the agreed

price named therein; (6) if any such payment upon a contract or

subcontract relates to a particular item or items of the improvement, or

if any such payment for materials or services relates to materials

furnished, or services, other than daily or weekly labor, rendered for

or upon a particular item or items of the improvement, a description of

such item or items; (7) if any such payment was made with funds received

under an assignment of funds due or earned or to become due or earned

under the contract or subcontract, a statement of the amount of such

funds so used together with the name and address of the assignee and the

date of the assignment.

E. Transfers in repayment of or to secure advances made pursuant to a

"Notice of Lending." If the trustee has assigned, paid or otherwise

transferred any trust asset in consideration of or as security for or in

repayment of advances applied or to be applied for a purpose or purposes

of the trust, (1) the name and address of the person to whom the asset

was so transferred; (2) the date of the transfer; (3) a description of

the asset transferred; (4) the amount thereof; (5) the amount of the

consideration therefor or of the advances secured or repaid thereby; (6)

the date or dates when such consideration was paid or such advances were

made and the manner in which the payment or advance was made.

4. Failure of the trustee to keep the books or records required by

this section shall be presumptive evidence that the trustee has applied

or consented to the application of trust funds actually received by him

as money or an instrument for the payment of money for purposes other

than a purpose of the trust as specified in section seventy-one of this

chapter.

Right of beneficiaries to examine books or records and make

copies, or to receive statement. 1. Any beneficiary of the trust holding

a trust claim shall be entitled, upon request, after the expiration of

thirty days from the date his trust claim became payable, and thereafter

not oftener than once in each month, (a) to examine the books or records

of the trustee with respect to the trust, and to make copies of any part

or parts thereof relating to the trust; or (b) at the beneficiary's

option to receive a verified statement setting forth the entries with

respect to the trust contained in such books or records.

2. Request for such examination and to make such copies, or for such

verified statement, shall be made in writing served personally or by

registered or certified mail. The request shall contain a statement of

the name and address of the beneficiary, a description of the

improvement of real property, or home improvement, or the public

improvement sufficient to identify it and to identify the trust, and a

statement of the nature of the trust claim sufficient to identify it,

the amount then due and unpaid, and the due date thereof.

3. Unless otherwise agreed, the examination and copying shall be had

within ten days after service of the request, at a place within the

county in which the improvement, or home improvement, or public

improvement is situated, designated by the trustee within such ten days,

and at a time during usual business hours, so designated by the trustee.

The examination and copying may be made by the beneficiary or by his

agent duly authorized in writing.

4. Within ten days after service of a request for a verified

statement, the trustee shall serve upon the beneficiary named in the

request a statement, subscribed by the trustee or an officer thereof and

verified on his own knowledge, setting forth the entries with respect to

the trust contained in the books or records kept by the trustee pursuant

to section seventy-five and the names and addresses of the person or

persons who, on behalf of or as officer, director or agent of the

trustee, made or consented to the making of the payments shown in such

statement.

5. A trustee to whom a request is made for examination of books or

records and for copying therefrom or for a verified statement of entries

in books or records may apply to any court having jurisdiction of an

action to enforce the trust, to vacate such request on the ground that

the person making the request is not entitled to such examination and

copying or to receive such verified statement. If a trustee on whom a

request for examination and copying or for a verified statement is

served as provided in this section shall refuse to comply therewith or

shall fail to comply therewith within ten days, or shall apply to the

court for an order to vacate the request, the beneficiary may apply to

such court for an order directing that the trustee comply with the

request. Such application may be made in either case on three days'

notice and may be determined summarily upon affidavits of the parties.

6. This section does not limit the power of the court in an action

pursuant to section seventy-seven of this chapter or in any other action

or proceeding affecting trust assets or involving trust claims or the

administration of the trust, to give directions with respect to

production or examination of any books or records of the trustee.

Action to enforce trust. 1. A trust arising under this article

may be enforced by the holder of any trust claim, including any person

subrogated to the right of a beneficiary of the trust holding a trust

claim, in a representative action brought for the benefit of all

beneficiaries of the trust. An action to enforce the trust may also be

maintained by the trustee. In any such action, except as otherwise

provided in this article, the practice, pleadings, forms and procedure

shall conform as nearly as may be to the practice, pleadings, forms and

procedure in a class action as provided in article nine of the civil

practice law and rules; provided, however, that in determining whether

the prerequisites of a class action have been satisfied, the provisions

of paragraph one of subdivision (a) of section nine hundred one of such

law and rules may be waived at the discretion of the court.

2. Such action may be maintained at any time during the improvement of

real property, or home improvement, or public improvement and successive

actions may be maintained from time to time during the improvement

provided no other such action is pending at the time of the commencement

thereof. No such action shall be maintainable if commenced more than one

year after the completion of such improvement or, in the case of

subcontractors or materialmen, after the expiration of one year from the

date on which final payment under the claimant's contract became due,

whichever is later, except an action by the trustee for final settlement

of his accounts and for his discharge.

3. (a) The relief granted in any such action may include any or all of

the following:

(i) Relief to compel an interim or final accounting by the trustee; to

identify and recover trust assets in the hands of any person together

with interest accrued thereon from the time of the diversion. Interest

shall be computed at the rate equal to the underpayment rate set by the

commissioner of taxation and finance pursuant to subsection (e) of

section one thousand ninety-six of the tax law, minus four percentage

points; to set aside as a diversion any unauthorized payment, assignment

or other transfer, whether voluntary or involuntary; to enjoin a

diversion; to recover damages for breach of trust or participation

therein;

(ii) Enforcement on behalf of the trust of any right of action

constituting a trust asset;

(iii) Determination of the existence and amount of any trust asset or

of any trust claim;

(iv) An order terminating or limiting the authority of the trustee in

the application of trust assets or of any trust asset, or directing the

time and manner of application of a trust asset or part thereof;

(v) An order requiring the trustee to give security to ensure the

proper distribution of the trust assets, either during the pendency of

the action or thereafter, or to furnish assurance therefor in any other

manner, if it appears that there is danger that such assets or asset

will be dissipated before judgment or diverted from trust purposes;

(vi) An order for distribution of any trust assets available for

distribution, either with respect to the entire trust or with respect to

particular assets of the trust, or for retention of particular assets

for future distribution. Where the holder of any trust assets is a

trustee or a transferee who received the assets with the knowledge that

they were trust funds, an order for distribution and retention for

future distribution of any trust assets shall include the amount of

diverted funds plus interest from the time of the diversion to the date

of such order;

(vii) Settlement of the interim or final account of the trustee;

(viii) Final discharge of the trustee at the termination of the trust,

or discharge of the trustee with respect to the application of specific

trust assets;

(ix) Such other and further relief as to the court may seem necessary

and proper;

(x) Any provisional or ancillary relief incident to any of such

relief.

(b) Any relief pursuant to subparagraphs (i), (ii), (iii), (iv), (v),

(ix), or (x) of paragraph (a) shall be deemed to be for the benefit of

the entire class of trust beneficiaries, including persons who may

become trust beneficiaries at any time before the termination of the

trust. Except as provided in subdivision four of this section, relief

pursuant to subparagraph (vi) shall also be deemed to be for the benefit

of such entire class, but unless the court shall otherwise direct, only

those persons shall be entitled to share in any distribution of the

trust assets who are trust beneficiaries at the time of entry of the

judgment under which distribution is to be made and who have appeared in

the action or filed their claims in such manner and within such time as

the court shall direct, and whose claims are due and payable at the date

for distribution as set by the order of the court and either are

undisputed by the trustee or have been determined in the action.

4. If an action to enforce a trust of which the owner is trustee is

commenced before the completion or abandonment of the improvement of

real property, or home improvement, or if an action to enforce a trust

of which a contractor or subcontractor is trustee is commenced before

the completion or abandonment of the performance by the trustee under

the contract or subcontract, the judgment therein may provide for

distribution of the assets then available for distribution among trust

beneficiaries whose claims are then payable, and who have appeared in

the action or who file their claims within such time as the court shall

direct, and the judgment shall so provide unless the court shall

determine that in the circumstances equity requires that distribution be

deferred to await maturity of other trust claims.

5. If the action to enforce a trust of which a contractor or

subcontractor is trustee is brought after the completion or abandonment

of the performance of the contract or subcontract but before the

completion of the improvement the court may direct that the action be

continued to await events by reason of which additional trust assets may

become available.

6. For the purposes of any distribution of trust assets, the court may

direct that trust claims shown upon a schedule or schedules filed by the

trustee shall be deemed to have been filed in the action.

7. An action brought under this article shall not be compromised or

discontinued nor dismissed by consent, by default or for failure to

prosecute, except with the approval of the court. On any application for

such approval notice shall be given in such manner as the court shall

direct.

8. Subject to subdivisions three and four of this section, in any

distribution of trust assets pursuant to order or judgment in an action

to enforce a trust, the following classes of trust claims shall have

preference, in the order named: (a) trust claims for taxes and for

unemployment insurance and other contributions, due by reason of

employments, and for amounts of taxes withheld or required to be

withheld; (b) trust claims of laborers for daily or weekly wages; (c)

trust claims for benefits and wage supplements; (d) claims for any

amounts of wages of laborers for daily or weekly wages (other than

claims for amounts of taxes deducted and withheld, constituting trust

claims for such amounts) actually deducted from payments thereof,

pursuant to law or agreement, for remittance to any person on behalf of

the laborer or in satisfaction of his obligation, to the extent that

such person is entitled to assert, as a trust claim, the claim the

laborer would otherwise have for such amount.

Except as provided in this subdivision, trust claims entitled to share

in any distribution of trust assets pursuant to order of the court shall

share pro rata.

Relief after judgment on obligation constituting trust claim. If

a trust beneficiary shall recover judgment against the trustee upon the

obligation constituting the trust claim: (except in the enforcement of a

lien as provided in articles two and three of this chapter)

(a) execution upon the judgment shall not be levied upon any trust

asset;

(b) to the extent of trust assets affected by proceedings to enforce

the judgment, the proceedings shall be deemed to be for the benefit of

all trust beneficiaries who would, at the time the proceeding is

instituted, be entitled to maintain an action to enforce the trust, and

the provisions of section seventy-seven of this chapter shall apply in

any such proceedings.

Liens not affected. Nothing in this article shall prevent the

enforcement of any lien as provided in articles two and three of this

chapter and neither such lien nor any satisfaction obtained thereby,

shall be deemed a diversion of trust assets or an unauthorized

preference. For the purposes of determining the share of any trust

beneficiary upon any distribution in an action to enforce the trust, the

trust claim of a trust beneficiary shall not be reduced by reason of any

lien to which he is entitled or by reason of any rights under any bond

to which he is entitled by reason of his lien.

Misappropriation of funds of trust. 1. Any trustee of a trust

arising under this article, and any officer, director or agent of such

trustee, who applies or consents to the application of trust funds

received by the trustee as money or an instrument for the payment of

money for any purpose other than the trust purposes of that trust, as

defined in section seventy-one, is guilty of larceny and punishable as

provided in the penal law if

(a) such funds were received by the trustee as owner, as the term

"owner" is used in article three-a of this chapter, and they were so

applied prior to the payment of all trust claims as defined in such

article three-a, arising at any time; or

(b) such funds were received by the trustee as contractor or

subcontractor, as such terms are used in article three-a of this

chapter, and the trustee fails to pay, within thirty-one days of the

time it is due, any trust claim arising at any time; provided, however,

that if the trustee who received such funds as contractor or

sub-contractor disputes in good faith the existence, validity or amount

of a trust claim or disputes that it is due, the application of trust

funds for a purpose other than a trust purpose, or the consent to such

application, shall not be deemed larceny by reason of failure to pay the

disputed claim within thirty-one days of the date when it is due if the

trustee pays such claim within thirty-one days after the final

determination of such dispute.

2. Notwithstanding subdivision one of this section, if the application

of trust funds for a purpose other than the trust purposes of the trust

is a repayment to another person of advances made by such other person

to the trustee or on his behalf as trustee and the advances so repaid

were actually applied for the purposes of the trust as stated in section

seventy-one, or if the trustee has made advances of his personal funds

for trust purposes and the amount of trust funds applied for a purpose

other than the trust purposes of the trust does not exceed the amount of

advances of personal funds of the trustee actually applied for the

purposes of the trust, such application or consent thereto shall be

deemed justifiable and the trustee, or officer, director or agent of the

trustee, shall not be deemed guilty of larceny by reason of such

application or by reason of his consent thereto.

3. Failure of the trustee to keep the books or records required by

section seventy-five shall be presumptive evidence that the trustee has

applied or consented to the application of trust funds received by him

as money or an instrument for the payment of money for purposes other

than a purpose of the trust as stated in section seventy-one.

4. Notwithstanding any other provision of law, no act of the trustee

in relation to the assets of the trust shall, by reason of any express

covenant as provided in section thirteen or section twenty-five of this

chapter, be deemed larceny in a case in which it is not declared by

subdivision one of this section to be larceny or in a case in which the

act is deemed justifiable as provided in subdivision two of this

section.

Liens on vessels. A debt which is not a lien by the maritime

law, and which amounts to fifty dollars or upwards, on a sea-going or

ocean-bound vessel, or fifteen dollars or upwards on any other vessel

shall be a lien upon such vessel, her tackle, apparel and furniture, and

shall be preferred to all other liens thereon, except mariners' wages,

if such debt is contracted by the master, owner, charterer, builder or

consignee of such ship or vessel, or by the agent of either of them,

within this state, for either of the following purposes:

1. For work done or material or other articles furnished in this state

for or towards the building, repairing, fitting, furnishing or equipping

of such vessel.

2. For such provisions and stores, furnished within this state, as are

fit and proper for the use of such vessel, at the time when they were

furnished.

3. For wharfing and the expense of keeping such vessel in port, and

for the expense of employing persons to watch her.

4. For loading or unloading such vessel, or for the advances made to

procure necessaries therefor, or for the insurance thereof.

5. For towing or piloting such vessel, or for the insurance or premium

of insurance of or on such vessel or her freight; but no lien exists for

a debt contracted for any purpose specified in this subdivision, unless

it amounts to the sum of twenty-five dollars or more.

Lien on vessel causing damage. When a vessel shall have

sustained damage by any other vessel through the negligence or wilful

misconduct of the person navigating such vessel, to the extent of fifty

dollars, the owner of the damaged vessel shall have a lien, unless a

lien is given therefor by maritime law, upon the vessel causing the

damage, her tackle, apparel and furniture, to the extent of such damage,

which shall be deemed a debt for the purposes of this article, and the

master, owner, agent or consignee of the damaged vessel may enforce such

lien in like manner and with like effect as in case of other liens

created by this article; but a notice of the lien must be filed in the

office of the clerk of the county in which such damage is sustained, and

proceedings to enforce the lien must be commenced within ten days after

the damage has been done, or such damage shall cease to be a lien upon

such vessel. But if such damage is sustained in either of the counties

of New York, Kings or Queens such notice shall be filed in the office of

the clerk of the city and county of New York.

Notice of lien, when to be filed. Every debt specified in

section eighty shall cease to be a lien upon such vessel unless the

lienor shall, within ninety days after the debt becomes due, except as

hereinafter provided, file a notice of lien, containing the name of the

vessel, the name of the owner, if known, the particulars of the debt and

a statement of the amount claimed to be due from such vessel, and

verified by the lienor, his legal representative, agent or assignee, to

be true and correct. If the debt is based upon a written contract, a

copy of such contract shall be attached to such notice. The notice shall

be filed in the office of the clerk of the county in which the debt is

contracted. But if the debt was contracted in the city of New York, such

notice shall be filed in the office of the clerk of the county of New

York. Whenever any debt specified in section eighty is contracted by the

master, owner, charterer, builder or consignee of any ship or vessel

navigating the western and northwestern lakes, or any of them, or the

river Saint Lawrence, or by the agent of such master, owner, charterer,

builder or consignee, such debt shall not cease to be a lien upon such

ship or vessel if the person to whom such debt may be owing shall, by

the first Tuesday of February next succeeding the time such debt becomes

due cause to be drawn up, verified and filed, specifications of such

debt in the form and comprising the statements in this section

prescribed.

Duration of lien. Every lien for a debt shall cease if the

vessel navigates the western or northwestern lakes, or either of them,

or the Saint Lawrence river, at the expiration of six months after the

first of January next succeeding the time when the debt was contracted,

and in case of any other vessel, at the expiration of twelve months

after the debt was contracted. If, upon the expiration of the time

herein limited in either of such cases, such vessel shall be absent from

the port at which the debt was contracted, the lien shall continue until

the expiration of thirty days after the return of such vessel to such

port. If proceedings are instituted for the enforcement of the lien

within the time herein limited, such lien shall continue until the

termination of such proceedings.

Assignment of lien. A lien, a notice of which has been filed

pursuant to the provisions of this article, may be assigned by a written

instrument duly acknowledged and filed in the same place where the

notice of the lien was filed. The assignment shall specify the debt upon

which the lien is founded, the date of the filing of the notice thereof

and the assignee. Such assignment and the name of the assignee shall be

entered by the clerk opposite the original entry of such lien, and after

the filing of such assignment, but not otherwise, the assignee may

enforce the lien in like manner as the assignor could have done.

Enforcement of lien. If a lien, created by virtue of this

article, is founded upon a maritime contract, it can be enforced only by

proceedings in the courts of the United States, and in any other case,

in the courts of this state, in the manner prescribed in the following

sections of this article.

Application for warrant. The lienor may make a written

application to a justice of the supreme court, at chambers, in the

judicial district in which the lienor resides or in a county adjoining

such district, for a warrant to enforce a lien on a vessel and to

collect the amount thereof.

The application shall specify:

1. By whom and when such debt was contracted and for what vessel; and

the name and residence of the owner of the vessel, if known.

2. The items composing the debt and the amount claimed.

3. That the debt is justly due the applicant over and above all

payments and just deductions.

4. Any assignment or transfer of the debt which may have taken place

since it was contracted.

5. When and where the notice of lien was filed.

The application shall be verified in the same manner as a pleading in

a court of record.

Undertaking to accompany application. Such application shall be

accompanied by an undertaking in the sum of at least one hundred

dollars, to be approved by such justice and filed in the office of the

clerk of the county where the notice of lien is filed, with at least one

surety, who shall be a resident and freeholder within the state, to the

effect that if it is finally adjudged that the applicant was not

entitled to the warrant, he will pay all costs which may be awarded

against him, not exceeding the amount specified in the undertaking, and

any damages sustained by reason of the seizure of the vessel under such

warrant, not to exceed fifty dollars.

Warrant; execution thereof. Thereupon, such justice shall issue

a warrant to the sheriff of the county where such vessel may be, or,

generally to the sheriff of any county, specifying the amount of the

claim, and the names of the persons making the claim and commanding him

to seize and safely keep such ship or vessel, her tackle, apparel and

furniture, to satisfy such claim, if established to be a lien upon the

vessel according to law, and within ten days after the seizure to make

return of his proceedings under the warrant to such justice. The sheriff

shall forthwith execute such warrant, and keep the vessel, her tackle,

apparel and furniture to be disposed of according to law. In his return

the sheriff shall state also whether he has seized such vessel by virtue

of any other warrant, and if so, in whose behalf and for what sum such

warrant was issued and the time of its receipt by him.

Order to show cause; contents; service. At the time of issuing

such warrant the justice shall grant an order to show cause, why the

vessel seized by virtue of such warrant should not be sold to satisfy

the lien specified in the application. Such order shall be returnable

not less than eight days after the service thereof, as required in this

section, before the justice and at the time and place mentioned therein.

It shall be directed to the master or other person in charge of the

vessel seized and to the owner and consignee thereof, if known. A copy

of such order and the application for the warrant shall be served

personally upon the master or other person in charge of such vessel at

the time of the execution of such warrant; and personally upon the owner

and consignee of such vessel if a resident of the state, or if not a

resident of the state, by mail addressed to such owner or consignee at

his last known place of residence, within ten days after the execution

of such warrant.

Notice of issuance of warrant to be published and served. Within

three days after the issue of the warrant, the applicant shall cause a

notice to be published once in each week for two consecutive weeks, in a

newspaper published in the county where the vessel was seized, stating

the issuance of the warrant, the date thereof, the amount of the claim

specified therein, the name of the applicant, and the time and place of

the return of the order to show cause granted as prescribed in this

article.

Proceedings upon return of order to show cause; trial of issue.

At the time and place mentioned in the order to show cause, the master

or other person in charge of such vessel, the owner or consignee thereof

or any other person interested therein, may apply and contest the claim

of the lienor as contained in the application for a warrant, by filing

with the justice an affidavit controverting any material allegation

contained in the notice of lien or the application of the lienor. The

issue so raised shall be tried as are other issues in a court of record,

without a jury, before the justice granting the order at a time to be

fixed by him, or they may be referred by him to a referee, to be heard

and determined.

Order of sale, when made. 1. An order may be made by the justice

before whom the order to show cause was returnable, for the sale of the

vessel, her tackle, apparel and furniture, in the following cases:

a. In case the master, owner, consignee or other person interested in

the vessel does not appear upon the return day and contest the claim of

the lienor, and proof is made of the service of the order to show cause

and the application and of the publication of the notice and the service

thereof, as required in this article and due proof is made of the

validity and amount of such claim;

b. In case a trial is had of the issues raised, and it is determined

that the lien is valid and the amount claimed by the lienor or some part

thereof is due.

2. Such order shall direct the sheriff who seized the vessel to sell

the same and her tackle, apparel and furniture, to satisfy the liens

established on the hearing, and pay the costs and expenses necessarily

incurred in the proceedings as prescribed in this article. The rights of

secured parties whose security interests have been perfected by filing

according to law, prior to the filing of the notice of lien, on account

of which the order of sale is granted, shall not be affected by the sale

of such vessel pursuant to such order.

Sale and proceeds. Within ten days after the receipt of the

order of sale, the sheriff, unless the order be sooner vacated or the

lien discharged, shall sell the vessel seized, her tackle, apparel and

furniture, upon notice, and in the manner prescribed by law for the sale

of personal property upon execution issued out of a court of record. He

shall make a return to the justice granting the order, of his

proceedings thereunder, and shall, after deducting his fees and expenses

in seizing, preserving, watching and selling the vessel, pay into court

the remaining proceeds of the sale.

Notice of the distribution of the proceeds of sale. The justice

granting the order of sale, upon receiving such proceeds, shall order a

notice to be published once a week for three successive weeks in the

same newspaper in which the notice of seizure was published, requiring

all persons having liens upon the vessel under this article, and the

master, owner, agent or consignee thereof, and all other persons

interested therein, to appear before him, or a referee appointed by him,

at the time and place specified in such notice, not less than thirty nor

more than forty days from the first publication thereof to attend a

distribution of such proceeds. Such justice may appoint a referee to

make such distribution.

Liens for which no warrants are issued. A person who has a lien

under this article against the vessel so sold, and has made no

application for a warrant thereon, may present to and file with the

justice or referee at the time and place specified in the notice of

distribution of such proceeds, a verified statement of the facts and

allegations required to be stated in the application for a warrant. And

thereupon such lien shall be determined, with the same effect as if a

warrant had been issued to enforce such lien.

Contested claims. The master, owner, agent or consignee of the

vessel, or any person having an interest in the proceeds before final

distribution thereof, may contest any claim made against the vessel or

its proceeds, by filing with such justice a written answer, verified as

a pleading in a court of record, designating the claims contested and

controverting any material allegation of the notice of lien, application

for a warrant or statement of lien, and setting up any other matter in

defense thereto. A copy of such answer shall be served within five days

from such filing, upon the person whose claim is contested, or his

attorney.

If the answer does not contain any matter of defense to the claim, it

may be stricken out on motion of any person who has filed a notice of

lien against the vessel.

Trial of issues and appeal. The issues raised by any such answer

shall be tried in the same manner as issues are tried in a court of

record without a jury, before such justice at a time and place to be

fixed by him, or they may be referred by such justice to a referee, to

hear and determine. An appeal may be taken from the decision of such

justice or referee as in a civil action in a court of record. On such

appeal the decision upon the law and the facts, may be reversed,

modified, or a new trial ordered. Costs, upon appeal, shall be allowed,

as in the case of an appeal from a judgment in a court of record, and

judgment may be rendered therefor.

Distribution of proceeds. Upon the determination of all the

claims presented, the justice or referee shall make an order of

distribution of the proceeds. The order shall direct the payment of the

claims found to be subsisting liens upon such vessel or proceeds, with

all costs, expenses and allowances, in the order of the priority of

filing the notices of such liens, as provided in this article. Such

costs, expenses and allowances shall be in the discretion of the

justice, except as otherwise provided in this article.

Payment of uncontested claims. Any uncontested claims, entitled

to priority of payment over the claims which are contested, shall, on

motion of the parties interested, be paid with costs, in the order of

their respective priorities, without awaiting the determination of such

contest. If at any time it is made to appear that after the payment of

all prior uncontested claims and their respective costs, and after

deducting an amount sufficient to pay all prior contested claims and

costs, that there remains a surplus of proceeds applicable to the

payment of any subsequent uncontested claims, such claims may on notice

to all the parties interested be paid out of the surplus with costs,

without awaiting the determination of such contest.

Distribution of surplus. If upon payment of all claims

established as liens against the vessel from the proceeds of its sale, a

surplus remains, it may be distributed by the court to the persons

entitled thereto, after a hearing and the publication of a notice by the

applicants for the same time and in the same manner as the notice of

seizure is required by this article to be published. Such notice shall

specify the amount of the surplus proceeds, the names of the persons

applying therefor, the name of the vessel from the sale of which the

same arose, the date of the sale and the time and place when the hearing

will be held and the distribution of the surplus made.

Application for a discharge of warrant. The owner, consignee,

agent or master of any vessel so seized, or any person interested

therein, may at any time before the sale of the vessel under this

article, apply in person or by attorney to the justice issuing the

warrant, on at least one day's notice to the lienor or his attorney, for

an order discharging the same on giving an undertaking therefor. Such

notice shall specify the names, places of residence and places of

business of the proposed sureties upon such undertaking.

Undertaking to accompany application for discharge. The

application shall be accompanied by an undertaking to the lienor

executed by at least two sureties in a sum at least twice the amount

specified in the warrant, to the effect that the person making the

application for the discharge of the vessel will pay the amount of all

claims and demands which shall be established to be due to the person in

whose behalf the warrant was issued, and to have been a subsisting lien

on the vessel at the time of its issue. The undertaking when found

sufficient, must be approved by the justice to whom the application is

made as to the sufficiency of the sureties, and the lienor may examine

the sureties as to their sufficiency at such time and places as may be

fixed by such justice.

Discharge of warrant. When such undertaking shall have been

executed, approved and delivered to the lienor and the taxed fees of the

sheriff upon the seizure and detention of the vessel have been paid, the

justice shall make an order discharging the warrant, and no further

proceedings against the vessel seized shall be had under this article

founded upon any demand secured by such undertaking.

Action on undertaking. The undertaking may be prosecuted by

action in any court having jurisdiction thereof, at any time within

three months after its delivery, but not afterward. If, in such action

it is found that any sum is due the plaintiff which was a subsisting

lien upon the vessel at the time the notice of lien was filed, the

plaintiff shall have judgment for the recovery of the same with the

costs and disbursements of the action and the costs of the proceedings

for the seizing of the vessel and shall have execution therefor. If it

is found in such action that no such lien existed, judgment shall be

rendered against the plaintiff for the costs and disbursements of the

action and the costs of the proceedings, including the amount paid the

sheriff in the discharge of the vessel from the warrant.

Costs of proceedings. The costs of the proceedings in addition

to the disbursements shall be: For filing notice of lien, two dollars.

For applying for and procuring a warrant if the lien is fifty dollars or

under, ten dollars; if the lien exceeds fifty dollars and is not more

than two hundred and fifty dollars, twenty dollars; if the lien exceeds

two hundred and fifty dollars, and is not more than one thousand

dollars, thirty dollars; if the lien exceeds one thousand dollars, forty

dollars. For attending proceedings upon the discharge of the warrant on

the execution of an undertaking, ten dollars.

The sheriff shall be entitled in any such proceedings to the following

fees and expenses: For serving warrant, one dollar. For return of the

same, one dollar. The necessary sums paid by him for the expense of

keeping the vessel in custody, not exceeding two dollars and fifty cents

for each day. The sheriff shall not receive any other or greater sums

for any service rendered by him in any proceeding under this article,

nor shall he be allowed expense of custody of the vessel upon more than

one warrant at the same time. All costs, disbursements and fees shall be

verified by affidavit and adjusted by the justices issuing the warrant.

Sheriff must return warrant. A sheriff to whom a warrant may

have been delivered pursuant to the provisions of this article, may be

compelled by an order made by the justice issuing it, to return such

warrant with his proceedings thereon and pay over moneys in his hands,

and to take any necessary steps for the safety of the vessel, pursuant

to any order for that purpose. Obedience to such order may be enforced

by attachment against the sheriff on the application of any person

interested therein.

Discharge of lien before issue of warrant. When any notice of

lien shall have been filed under this article and no warrant has been

issued to enforce the same, any person interested in the vessel, may

apply to any justice of the supreme court for leave to discharge the

lien upon giving an undertaking therefor to the lienor. The application

shall be in writing, and shall state the amount of the lien claimed and

the grounds of the defense thereto, and the names of the persons

proposed as sureties on such undertaking, with their respective

residences and places of business. Upon presenting such application with

proof that a copy thereof, with at least five days' notice of the time

and place of presenting the same, has been served upon the lienor, such

justice may, if no just cause be shown in opposition thereto, authorize

the execution of such undertaking, which shall be to the same effect as

an undertaking required in this article upon the application to

discharge a warrant, and an action may be brought thereon in like

manner. At the time of the presentation of such application the sureties

proposed in such undertaking shall justify before such justice. When

such undertaking has been executed and approved by such justice and

delivered to the lienor, the justice shall direct the clerk with whom

the notice of lien is filed to mark the same as discharged, and it shall

cease to be a lien upon such vessel.

Liens on monuments, gravestones and cemetery structures. A

person furnishing or placing in a cemetery or burial ground, a monument,

gravestone, inclosure or other structure, has a lien thereon for the

agreed price thereof or the part remaining unpaid, with interest from

the time the amount was due, upon filing with the superintendent or

person in charge of such cemetery or burial ground, a notice of lien as

provided in this article.

Notice of lien. Such notice may be filed at any time after the

completion of the work, but must be filed within one year after the

agreed price for furnishing or placing such monument, gravestone,

inclosure or other structure becomes due, and shall state that the

lienor has a lien on such monument, gravestone, inclosure or structure

for the purchase price thereof, or some unpaid part of such purchase

price, with interest, specifying the amount agreed to be paid, and the

amount unpaid, with a description of such monument, gravestone,

inclosure or other structure, and the location of the plot upon which it

stands, and the names of the persons with whom the agreement for the

purchase and erection of the structure, or for the performance of such

labor was made. The notice shall be signed and verified by the lienor.

The lienor shall, within ten days after the filing of such notice, serve

a copy personally, or by mail, upon the person with whom the agreement

for the purchase and erection of such monument, gravestone, or other

structure, or for the performance of labor thereon was made, and upon

the owner of the lot upon which such monument, gravestone or other

structure is erected, if the name and residence of such owner can, with

reasonable diligence be ascertained.

Proceedings to enforce lien. After the service of such notice,

an action to recover the amount of the debt and to enforce a lien

therefor may be maintained by the lienor against the person with whom

the agreement was made, for the purchase and erection of such monument,

gravestone, inclosure or other structure or for the performance of labor

thereon. If such lienor succeeds in establishing his lien, the judgment

recovered may authorize him to remove such monument, gravestone,

inclosure or other structure from the burial ground or cemetery and to

sell the same at public auction to satisfy the amount of such judgment.

Notice of the sale shall be published at least ten days before the time

thereof, in a newspaper published in the town or city where such sale is

to take place, and if no newspaper is published therein, in a newspaper

nearest thereto. Such notice shall state the time and place of the sale,

and shall describe the property to be sold. A copy of such notice shall

be served personally or by mail at least ten days before such sale upon

the persons served with the notice of lien as prescribed in the

preceding section.

Disposition of proceeds of sale. The lienor shall, out of the

proceeds of the sale, pay the expenses thereof, and the expenses of the

removal of such monument, gravestone, inclosure or other structure from

the cemetery or burial ground, not exceeding fifty dollars, if a

monument, and ten dollars, if a gravestone, inclosure or other

structure, and retain out of such proceeds, the amount due upon the

judgment recovered in the action to enforce the lien, and the residue,

if any, shall be forthwith paid to the judgment debtor.

Duties of officers of cemetery associations. The superintendent

or other person in charge of a cemetery or burial ground shall not

permit the removal, alteration or inscription of a monument, gravestone,

inclosure or other structure, against which a lien exists, after the

notice of such lien has been filed and served as prescribed in this

article, except pursuant to the terms of a judgment recovered in an

action brought to enforce such lien. No officer of a cemetery

association, or other person connected with a cemetery or burial ground,

shall hinder or obstruct the removal in a proper manner of any such

monument, gravestone, inclosure or other structure pursuant to the terms

of such judgment.

Lien for labor performed in quarrying, mining, dressing and

cutting stone. A person employed in a quarry, mine, yard or dock at

excavating, quarrying, mining, dressing or cutting sandstone, granite,

cement stone, limestone, bluestone or marble, may have a lien on such

sandstone, cement stone, granite, limestone, bluestone or marble, for

the amount due for the labor expended thereon, upon filing a notice of

lien as paragraph two of subsection (a) of section 9--501 of the uniform

commercial code requires to perfect a security interest in such

sandstone, cement stone, granite, limestone, bluestone or marble. Such

notice must be filed within thirty days after the completion of such

labor and must state the amount due therefor, the name and residence of

the lienor, and the name of the person for whom the labor was performed,

the quantity and description of the sandstone, cement stone, granite,

bluestone, limestone or marble against which the claim is made. Such

notice of lien shall be marked, filed and indexed by the filing officer

in the same manner as a financing statement, and the same fees shall be

charged therefor. A copy of the notice so filed shall be served upon the

owner of such sandstone, cement stone, granite, limestone, bluestone or

marble or upon the person in charge of the quarry, mine, yards or docks

wherein such services were performed within five days after the filing

thereof.

Duration and effect of lien. Such lien shall terminate unless

an action is brought to enforce the same within three months after the

date of filing such notice, as provided in article nine for the

enforcement of a lien upon a chattel. If the labor upon such sandstone,

cement stone, granite, bluestone, limestone or marble is performed for a

contractor under a contract with the owner of such quarry, mine, yard or

dock, the owner shall not be liable to pay by reason of all the liens

filed against such quarry, mine, yard or dock, a greater sum than the

amount unpaid upon such contract at the time of filing such notices, or

in case there is no contract, than the aggregate amount unpaid of the

value of labor and services performed, pursuant to the preceding

section. The lien created by this article shall not attach to any

material which shall have become a part of any building or structure, or

ceased to be the property of the person for whom such labor was

performed.

Discharge of lien. Such lien may be discharged by a payment of

the amount due thereon, by a failure to bring an action to enforce the

same within the time prescribed in the preceding section, by the written

consent of the lienor, duly acknowledged and filed with the proper

officer to the effect that such lien may be discharged, and by the owner

of such sandstone, cement stone, granite, bluestone, limestone or marble

filing with such officer an undertaking in an amount equal to twice the

sum specified in the notice of lien, executed by one or more sureties

who shall justify in such amount and approved by the officer with whom

the notice of lien is filed, conditioned for the payment of the sum due

such lienor, by reason of such lien, and the cost and expenses of

enforcing the same.

Definitions. For the purposes of this article the following

terms shall have the following meanings:

1. "Customer" means any individual or entity who causes a molder to

fabricate, cast or otherwise make a die, mold, form, or pattern or who

provides a molder with a die, mold, form, or pattern to manufacture,

assemble, cast, fabricate or otherwise make a product or products for a

customer.

2. "Molder" means any individual or entity who fabricates, casts or

otherwise makes or uses a die, mold, form, or pattern for the purpose of

manufacturing, assembling, casting, fabricating, or otherwise making a

product or products for a customer. A "molder" includes, but is not

limited to, a tool or die maker.

Creation of a lien. Molders shall have a lien, dependent on

possession, on all dies, molds, forms or patterns in their hands

belonging to a customer, for the balance due them from such customer for

any manufacturing or fabrication work, and in the value of all material

related to such work. Such lien shall not have priority over any

security interest in the die, mold, form or pattern that is perfected at

the time the molder acquires the lien. The molder may retain possession

of the die, mold, form or pattern until the charges are paid.

Enforcement. Before enforcing such lien, notice in writing

shall be given to the customer, and to the holder of a perfected

security interest either delivered personally or sent by registered mail

to the last-known address of the customer or holder of a perfected

security interest. This notice shall state that a lien is claimed for

the damages set forth in or attached to such writing for manufacturing

or fabrication work contracted and performed for the customer. Notice to

the customer shall also include a demand for payment.

Period of cure. If the molder has not been paid the amount due

within sixty days after the notice has been received by the customer as

provided in section one hundred fifty-two of this article, the molder

may sell the die, mold, form or pattern at a public auction.

Sale procedure for mold lien property. 1. Before a molder may

sell the die, mold, form or pattern the molder shall notify the customer

and the holder of a perfected security interest by registered mail,

return receipt requested. This notice shall include the following

information:

(a) The molder's intention to sell the die, mold, form or pattern

thirty days after the customer's receipt of the notice.

(b) A description of the die, mold, form or pattern to be sold.

(c) The time and place of the sale.

(d) An itemized statement for the amount due.

(e) The notice shall state that if a customer disputes the amount

claimed under the lien, the customer is entitled to bring a proceeding

hereunder within ten days of the service of the notice of sale to

establish the amount of the lien. The proceeding may be brought in any

court which would have jurisdiction to render a judgment for a sum equal

to the amount of the lien.

2. If there is not a return of the receipt of the mailing or if the

postal service returns the notice as being nondeliverable, the molder

shall publish notice of the molder's intention to sell the die, mold,

form or pattern in a newspaper of general circulation in the customer's

last known place of business. The notice shall include a description of

the die, mold, form or pattern.

3. If the sale is for a sum greater than the amount of the lien, the

excess shall be paid to any other lienholder known to the molder at the

time of the sale and any remainder to the customer, if the customer's

address is known, or the state treasurer for deposit in the general fund

if the customer's address is unknown to the molder at the time of the

sale.

4. A sale shall not be made under this section if it would be a

violation of any right of the customer under federal patent or copyright

law.

Lien on mare and foal, or on cow and calf. On complying with

the provisions of this article, the owner of a stallion or bull shall

have a lien on each mare or cow served together with the foal or calf of

such mare or cow from such service, for the amount agreed on at the time

of service, or if no agreement was made, for the amount specified in the

statement hereinafter required to be filed, if within twenty months

after such service he files a notice of such lien with the proper

officers and in the same manner as is required to perfect a security

interest under paragraph two of subsection (a) of section 9--501 of the

uniform commercial code. Such notice of lien shall be in writing,

specifying the person against whom the claim is made, the amount of the

same and a description of the property upon which the lien is claimed,

and such lien shall terminate at the end of eighteen months from the

date of such filing, unless within that time an action is commenced for

the enforcement thereof, as provided in sections two hundred six to two

hundred ten, both inclusive, of this chapter, for the foreclosure of a

lien on chattels.

Copy of statement and certificate to be posted. The person

having the custody and control of such stallion or bull, shall post a

written or printed copy of such statement and certificate in a

conspicuous place in each locality in which said stallion or bull is

kept for service.

Penalty. A person who neglects or refuses to file and post such

statement as required in this article, or falsely states the pedigree of

such stallion or bull in such statement, forfeits all fees for the

services of such stallion or bull and is liable to a person deceived or

defrauded thereby for the damages sustained.

Artisans' lien on personal property. A person who makes,

alters, repairs or performs work or services of any nature and

description upon, or in any way enhances the value of an article of

personal property, at the request or with the consent of the owner, has

a lien on such article, while lawfully in possession thereof, for his

reasonable charges for the work done and materials furnished, and may

retain possession thereof until such charges are paid.

Self-storage facilities; lien. 1. Definitions. As used in this

article:

(a) "Self-storage facility" means any real property or a portion

thereof that is designed and used for the purpose of occupying storage

space by occupants who are to have access thereto for the purpose of

storing and removing personal property. The owner of a self-storage

facility shall not be deemed to be a warehouseman as defined in the

uniform commercial code. Except as provided in paragraph (b) of this

subdivision, if an owner issues any warehouse receipt, bill of lading,

or other document of title for the personal property stored, the owner

and the occupant are subject to the provisions of the uniform commercial

code and the provisions of this section shall not be applicable.

(b) "Owner" means a person, partnership or corporation which operates

a self-storage facility, an agent, or any other person authorized by the

owner to manage the facility or to receive storage fees from an occupant

under an occupancy agreement. A warehouseman may be an owner to the

extent that any part of the building is operated as a self-storage

facility.

(c) "Occupant" means a person, entitled to the use of the storage

space at a self-storage facility under a written occupancy agreement or

his successor or assignee, to the exclusion of others including the

owner except as provided in this section or the occupancy agreement.

(d) "Occupancy agreement" means any written agreement, electronic or

printed, that establishes or modifies the terms, conditions, rules or

any other provisions concerning the use and occupancy of a self-storage

facility and any one or more individual storage spaces therein.

(e) "Personal property" means movable property not affixed to land and

includes, but is not limited to, goods, merchandise and household items.

(f) "Electronic mail" shall mean an electronic message or an

executable program or computer file that contains an image of a message

that is transmitted between two or more computers or electronic

terminals. Such term shall include electronic messages that are

transmitted within or between computer networks.

(g) "Last known address" shall mean the street address, post office

box address or electronic mail address provided by the occupant in the

occupancy agreement, or a subsequent address provided by the occupant

pursuant to the occupancy agreement.

(h) "Verified mail" shall mean any method of mailing that is offered

by the United States Postal Service or a private delivery service that

provides evidence of mailing including, but not limited to, a first

class mailing with certificate of mailing.

2. Required disclosures. (a) The owner shall be required to provide

prior to allowing occupancy a written occupancy agreement which shall be

dated and signed by the occupant and the owner or his duly authorized

agent, and be written or printed in a size equal to at least ten-point

bold type and which shall set forth the following information:

(i) name and address of owner and occupant and electronic mail address

of owner and occupant should the occupant choose to be contacted via

electronic mail;

(ii) street address of self-storage facility where goods will be

stored;

(iii) the actual monthly occupancy charge for the particular goods to

be stored expressed in dollars;

(iv) an itemization of other charges imposed or which may be imposed

in connection with the occupancy, a description of each such charge,

whether the charge is mandatory or optional, and the amount of each

charge expressed in dollars;

(v) a statement of any limitation of damages limiting the amount of

the owner's liability in case of loss or damage of the goods setting

forth a specific liability per room size or dollar amount beyond which

the owner will not be liable; provided that if damages are so limited, a

statement shall be included that such liability may on the written

request of the occupant and if accepted in writing by the owner at the

time of signing such occupancy agreement or within a reasonable time

thereafter be increased on part or all of the goods stored, in which

event increased rates may be charged based on such increased valuation.

The rates charged for an increased valuation shall be set forth and a

pre-addressed request form to enable the occupant to request an

increased valuation shall be provided; and

(vi) any other material terms and conditions of the occupancy

transaction.

(b) Every occupancy agreement as required by this section shall

include the business address and telephone number to be used by the

occupant in making inquiries concerning the occupancy transaction.

(c) Every occupancy agreement as required by this section shall

contain the following conspicuous notices: (i) "Notice: The monthly

occupancy charge and other charges stated in this agreement are the

actual charges you must pay"; (ii) "Notice: You may choose to be

contacted for legal matters related to late or lien notices, via

electronic mail by providing your electronic mail address in at least

two locations within the occupancy agreement".

3. Unlawful detention of goods. It shall constitute an unlawful

detention of goods for an owner to refuse to surrender goods stored by

him for an occupant upon payment by the occupant of the occupancy fees

permitted by this section.

4. Private right of action. (a) Any occupant damaged by an unlawful

detention of his goods or any other violation of this section may bring

an action for recovery of damages and the return of his goods. Judgment

may be entered in an amount not to exceed three times the actual damages

plus reasonable attorneys fees.

(b) Nothing in this section shall be construed so as to nullify or

impair any right or rights which a buyer may have against a seller at

common law, by statute or otherwise.

5. Violation and penalties. Whenever there shall be a violation of

this section, an application may be made by the attorney general in the

name of the people of the state to a court or justice having

jurisdiction by a special proceeding to issue an injunction, and upon

notice to the defendant of not less than five days, to enjoin and

restrain the continuance of such violations; and if it shall appear to

the satisfaction of the court or justice that the defendant has, in

fact, violated this section an injunction may be issued by such court or

justice, enjoining and restraining any further violation, without

requiring proof that any person has, in fact, been injured or damaged

thereby. In any such proceeding, the court may make allowances to the

attorney general as provided in paragraph six of subdivision (a) of

section eighty-three hundred three of the civil practice law and rules,

and direct restitution. Whenever the court shall determine that a

violation of this section has occurred, the court may impose a civil

penalty of not more than one thousand dollars for each violation. In

connection with any such proposed application, the attorney general is

authorized to take proof and make a determination of the relevant facts

and to issue subpoenas in accordance with the civil practice law and

rules.

6. Lien. The owner of a self-storage facility has a lien upon all

personal property stored at a self-storage facility for occupancy fees

or other charges, present or future, in relation to the personal

property and for expenses necessary for its preservation or expenses

reasonably incurred in its sale or other disposition pursuant to law and

any other charges pursuant to the occupancy agreement. The lien provided

for in this section is superior to any other lien or security interest.

The lien attaches as of the date the personal property is brought to the

self-storage facility.

7. Enforcement of lien. (a) An owner's lien may be enforced by public

or private sale of the occupant's goods that remain in the self-storage

facility, in block, or in parcel, at any time or place and on any terms

which are commercially reasonable after notice to all persons known to

claim an interest in the goods. The notice shall include an itemized

statement of the amount due, the description of the property subject to

the lien, the nature of the proposed sale, a demand for payment within a

specified time not less than thirty days from mailing of the notice and

a conspicuous statement that unless the claimant pays within that time

the goods will be advertised for sale and sold at public or private sale

in a commercially reasonable manner. The notice shall further include

the time and place of any public or private sale and it shall state that

any person claiming an interest in the goods is entitled to bring a

proceeding hereunder within ten days of the service of the notice if he

disputes the validity of the lien, or the amount claimed. The notice

shall be personally delivered to the occupant, or sent by registered or

certified mail to the occupant's last known address, or sent by verified

mail and electronic mail to the occupant's last known address. Any

notice made pursuant to this section and sent by verified mail shall be

sent to the last known address provided by the occupant, pursuant to the

occupancy agreement. Any notice made pursuant to this section and sent

by electronic mail shall only be effective if: (i) the occupancy

agreement states that the occupant has consented to receive late or lien

notices by electronic mail; and (ii) the occupant has provided the

occupant's electronic mail address in at least two locations within the

occupancy agreement.

(b) Any notice given pursuant to this section is deemed delivered when

it is: (i) properly addressed to the last known address, and (ii) either

sent by registered, certified or verified mail and evidence of mailing

is received, or sent by electronic mail and either a non-automated

response to the electronic mail is received or a receipt of delivery to

the electronic mail is received.

8. Pricing. The fact that a better price could have been obtained by a

sale at a different time or in a different method from that selected by

the owner is not of itself sufficient to establish that the sale was not

made in a commercially reasonable manner. If the owner either sells the

goods in the usual manner in any recognized market therefor, or if he

sells at the price current in such market at the time of his sale, or if

he has otherwise sold in conformity with commercially reasonable

practices among dealers in the type of goods sold, he has sold in a

commercially reasonable manner. A sale of more goods than apparently

necessary to be offered to insure satisfaction of the obligation is not

commercially reasonable except in cases covered by the preceding

sentence.

9. Special proceeding. The special proceeding may be brought in any

court which would have jurisdiction to render a judgment for a sum equal

to the amount of the lien. If the person shall show that the owner is

not entitled to claim a lien in the goods, or that all or part of the

amount claimed by the owner has not been properly charged to the account

of such person, or, as the case may be, that all or part of such amount

exceeds the fair and reasonable value of the services performed by the

owner, the court shall direct the entry of judgment cancelling the lien

or reducing the amount claimed thereunder accordingly. If the owner

shall establish the validity of the lien, in whole or in part, the

judgment shall fix the amount thereof, and shall provide that the sale

may proceed upon the expiration of five days after service of a copy of

the judgment together with notice of entry thereof upon the person,

unless the goods are redeemed prior thereto. If the lien is cancelled,

the judgment shall provide that, upon service of a copy of the judgment

together with notice of entry thereof upon the owner, the person shall

be entitled to possession of the property.

Lien of bailee of animals. Any veterinarian, duly licensed to

practice under the laws of this state, who in connection with such

practice renders professional services in the treatment of any dog, cat,

or other domestic animal or boards any such animal on his premises, or a

person keeping a livery stable, or boarding stable for animals, or

pasturing or boarding one or more animals, or who in connection

therewith keeps or stores any wagon, truck, cart, carriage, vehicle or

harness, has a lien dependent upon the possession upon each dog, cat or

other animal kept, pastured or boarded by him, and upon any wagon,

truck, cart, carriage, vehicle or harness, of any kind or description,

stored or kept provided an express or implied agreement is made with the

owners thereof, whether such owner be a mortgagor remaining in

possession or otherwise, for the sum due him for the professional

service rendered, care, keeping, boarding or pasturing of the animal, or

for the keeping or storing of any wagon, truck, cart, carriage, vehicle

and harness, under the agreement, and may detain the dog, cat or other

animal or wagon, truck, cart, carriage, vehicle and harness accordingly,

until such sum is paid.

Lien of bailee of motor vehicles, motor boats or aircraft. 1. A

person keeping a garage, hangar or place for the storage, maintenance,

keeping or repair of motor vehicles as defined by the vehicle and

traffic law, or of motor boats as defined by article seven of the

navigation law, or of aircraft as defined by article fourteen of the

general business law, and who in connection therewith tows, stores,

maintains, keeps or repairs any motor vehicle, motor boat, or aircraft

or furnishes gasoline or other supplies therefor at the request or with

the consent of the owner or, subject to the provisions of subdivision

two of this section, tows and stores any motor vehicle at the request of

a law enforcement officer authorized to remove such motor vehicle,

whether or not such motor vehicle, motor boat or aircraft is subject to

a security interest, has a lien upon such motor vehicle, motor boat or

aircraft for the sum due for such towing, storing, maintaining, keeping

or repairing of such motor vehicle, motor boat or aircraft or for

furnishing gasoline or other supplies therefor and may detain such motor

vehicle, motor boat or aircraft at any time it may be lawfully in his

possession until such sum is paid, except that if the lienor, subsequent

to thirty days from the accrual of such lien, allows the motor vehicle,

motor boat or aircraft out of his actual possession the lien provided

for in this section shall thereupon become void as against all security

interests, whether or not perfected, in such motor vehicles, motor boat

or aircraft and executed prior to the accrual of such lien,

notwithstanding possession of such motor vehicle, motor boat or aircraft

is thereafter acquired by such lienor.

However, if the bailee of a motor vehicle, motor boat or aircraft has

furnished a written estimate of the cost of towing, storage,

maintenance, repair or any other service on such motor vehicle, motor

boat or aircraft, any lien sought by such bailee for such service may

not be in an amount in excess of the written estimate.

2. A person who tows and stores a motor vehicle at the request of a

law enforcement officer authorized to remove such motor vehicle shall be

entitled to a lien for the reasonable costs of such towing and storage,

provided that such person, within five working days from the initial

towing, mails to the owner of said motor vehicle a notice by certified

mail return receipt requested that contains the name of the person who

towed and is storing said motor vehicle, the amount that is being

claimed for such towing and storage, and the address and times at which

said motor vehicle may be recovered. Such notice shall further state

that the person mailing said notice claims a lien on said motor vehicle

and that said motor vehicle shall be released to the owner thereof or

his or her lawfully designated representative upon full payment of all

charges accrued to the date that said motor vehicle is released. A

person who mails the foregoing notice within said five day period shall

be entitled to a lien for storage from and after the date of initial

towing, but a person who fails to mail such notice within said five day

period shall only be entitled to a lien for storage from and after the

date that the notice was mailed. A failure to mail such notice in a

timely fashion shall not affect a lien for towing.

3. The provisions of this section shall not apply to a person who tows

and stores a motor vehicle at the request of a law enforcement officer

where such request is made pursuant to the provisions of a local law or

ordinance regulating the towing and safekeeping of stolen or abandoned

vehicles within such locality and which requires such motor vehicle to

be turned over to the locality after a specified period of time.

4. The lien provided herein shall not inure to the benefit of any

person required to be registered as a motor vehicle repair shop pursuant

to article twelve-A of the vehicle and traffic law who is not so

registered.

5. A person who tows and stores a motor vehicle at the request of a

law enforcement officer authorized to remove such motor vehicle, and who

seeks to assert a lien for the storage of such motor vehicle pursuant to

subdivision two of this section shall mail by certified mail, return

receipt requested, a notice pursuant to this subdivision to every person

who has perfected a security interest in such motor vehicle or who is

listed as a lienholder upon the certificate of title of such motor

vehicle pursuant to the vehicle and traffic law within twenty days of

the first day of storage. Such notice shall include the name of the

person providing storage of the motor vehicle, the amount being claimed

for such storage, and address and times at which the motor vehicle may

be recovered. The notice shall also state that the person providing such

notice claims a lien on the motor vehicle and that such motor vehicle

shall be released upon full payment of all storage charges accrued on

the date the motor vehicle is released. A person who mails such notice

within such twenty day period shall be entitled to a lien for storage

from and after the first date of storage. A person who fails to mail

such notice within such twenty day period shall only be entitled to a

lien for the amount payable for storage from and after the date the

notice was mailed. A failure to mail such notice in a timely fashion

shall not affect a lien for towing.

Lien of manufacturers and throwsters of silk goods. All persons

or corporations engaged in the business of manufacturing, spinning or

throwing silk into yarn or other goods, shall be entitled to a lien upon

the goods and property of others in their possession for the amount of

any account that may be due them, from the owners of such silk, by

reason of any work and labor performed, and materials furnished in or

about the manufacturing, spinning or throwing of the same, or other

goods, of such owner or owners. Such lien shall not be waived or

impaired by the taking of any note or notes for the moneys so due, or

for the work and labor performed and materials furnished.

Lien of bailees for hire. Every person, firm or corporation

engaged in performing work upon any watch, clock or jewelry for a price

shall have a lien upon any such watch, clock or jewelry upon which such

person, firm or corporation performs such work for the amount of any

account that may be due for such work. Such lien shall also include the

value or agreed price, if any, of all materials furnished by such

bailees for hire in connection with such work, whether added to such

article or articles or otherwise. If such account remain unpaid for one

year, after completing such work, such bailees for hire may, upon thirty

days' notice in writing to the owner specifying the amount due and

informing him that the payment of such amount within thirty days will

entitle him to redeem such property, sell any such article or articles

at public or bona fide private sale to satisfy the account. The proceeds

of the sale, after paying the expenses thereof, shall be applied in

liquidation of the indebtedness secured by such lien and the balance, if

any, shall be paid over to the owner. Such notice may be served by mail,

directed to the owner's last known address, or, if the owner or his

address be unknown, it may be posted in two public places in the town,

village or city where the property is located. Such notice shall be

written or printed. Nothing herein contained shall preclude the remedy

of enforcing such lien by action, as provided in article nine of this

chapter.

Liens of truckmen and draymen. 1. Every person, firm or

corporation engaged in carting or trucking property shall have a lien

upon such property and may retain such portion of the property in his

possession as will insure to the said truckman or drayman, at the sale

of such property in the manner hereinafter provided, a fair and

reasonable compensation for the material and labor furnished, including

any moneys advanced by such bailee for hire in connection with such

work. Such truckman or drayman shall have such lien and may retain such

property only as provided in paragraph two of this section.

2. If such amount remains unpaid for thirty days after demand, such

bailee for hire may upon fifteen days' notice in writing to the owner,

specifying the amount due and informing him that the payment of such

amount within fifteen days will entitle him to redeem such property, and

if such property is not redeemed, such bailee may sell such property at

public sale to satisfy the account, including any expense for storage,

insurance, or otherwise incurred for the protection or preservation of

such property. The proceeds of the sale after paying the expenses

thereof shall be applied in liquidation of the indebtedness secured by

such lien, and the balance, if any, shall be paid over to the owner.

Such notice shall be served by registered mail directed to the owner's

last known postoffice address and by posting in three public places in

the town, village or city where the property is located. Nothing herein

contained shall preclude the remedy of enforcing such a lien by action

as provided in article nine of this chapter.

Lien of motion picture film laboratories. All persons, firms or

corporations engaged in the business of a motion picture film laboratory

or in the business of developing, titling, storing, assembling or

reproducing motion picture film shall have, in every case where such

persons or corporations copy, print, reprint, reproduce or in any manner

prepare, at the request, with the consent or with the knowledge of the

owner or his agent, a positive print or prints from a motion picture

negative film for the owner thereof, or for a lessee, licensee,

mortgagee, conditional vendee or person in possession thereof, a lien

upon such positive prints and upon the negative film from which such

positive print or prints were made, printed, reproduced or prepared,

including the distribution and exhibition rights therein of all persons,

firms or corporations at whose request, or with whose knowledge or

consent such positive prints were copied, printed, reprinted, reproduced

or prepared, and upon any and all other negative or positive prints or

films of such owner, lessee, licensee, mortgagee or conditional vendee

in their possession, including the distribution and exhibition rights

therein, of all such persons, firms and corporations aforesaid and may

retain such negative and positive motion picture films at any time they

may be lawfully in their possession until the payment of any sum due

from the owner of such negative or positive films or from any licensee,

lessee, mortgagee or conditional vendee thereof or from any person

authorized to contract for such work, for the material and labor

furnished, including storage charges, insurance, cost of containers and

money advanced in connection with the developing, printing, reproducing

and preparing of such motion picture negative or positive films.

Possession of motion picture film by any person who shall deliver the

same to any motion picture laboratory shall be presumptive evidence of

the consent of the owner thereof to the performance of the work which

may be done thereon or therefrom by such laboratory. No lien hereby

granted shall be waived or impaired by the taking of any note or notes

for the moneys so due or for the work and labor performed and materials

and moneys furnished.

Liens of hospitals. 1. Every corporation incorporated under

general law or special act as a charitable institution maintaining a

hospital in the state supported in whole or in part by charity, the

state university of New York and every county, city, town or village

operating and maintaining a hospital shall to the extent hereinafter

provided have a lien upon any and all rights of action, suits, claims,

counterclaims or demands, of any nature whatsoever, of any person

receiving emergency treatment or admitted to any such hospital and

receiving treatment, care and maintenance therein, on account of any

personal injuries received within a period of one week prior to

receiving emergency treatment or admission to the hospital and as the

result of the negligence, wrongful act or any other tort, of any other

person or persons or corporation, which any such injured person or the

legal representative of such injured person, in case of death as the

result of such injuries, may or shall have, assert or maintain against

any such other person or corporation for damages on account of such

injuries, for the amount of the reasonable charges of such hospital, for

the treatment, care and maintenance of such injured person at cost rates

in such hospital. If such injured person received emergency treatment or

was admitted to the hospital on account of personal injuries received

within a week prior to such treatment or admission, the state university

or any such corporation or such municipal corporation maintaining a

hospital to which such person may be transferred for subsequent

treatment of the same injuries shall also have a lien as provided herein

although such transfer may occur during or after a week from the time

when such injuries were received. No such lien shall be effective,

however, unless a written notice containing the name and address of the

injured person, the date of the accident, the name and location of the

hospital and the name of the person or persons, firm or firms,

corporation or corporations alleged to be liable to the injured party

for the injuries received, shall prior to the payment of any moneys to

such injured person, his attorneys, or legal representatives as

compensation for such injuries be mailed, registered or certified and

postage prepaid, to the person or persons, firm or firms, corporation or

corporations, alleged to be liable to the injured party for the injuries

sustained prior to the payment to such injured person, his attorneys or

legal representatives, as compensation for such injuries. Such hospital

shall mail a copy of such notice to any insurance carrier which has

insured such person, firm or corporation against such liability. Such

mailing shall be deemed to be effective notwithstanding any inaccuracy

or omission therein if the information contained therein shall be

sufficient to enable the person or persons or corporation alleged to be

liable, by the exercise of reasonable diligence, to identify the injured

person, the occurrence upon which the claim for damages is based and the

name and address of the hospital asserting the lien. Any hospital

claiming a lien hereunder shall, in addition to the foregoing, file in

the office of the county clerk of the county in which the hospital is

located and mail to the persons and in the manner above provided, after

the discharge of any injured person, an additional notice of lien, duly

verified, which shall show the total hospital charges which have accrued

and no lien hereunder shall exceed this amount.

2. (a) Subject to the provisions of paragraph (b) hereof the lien of

any such hospital shall attach: (i) To any verdict, decision, decree,

judgment or final order made or rendered in any suit, action or

proceeding of any nature whatsoever, brought in any court of this state,

by such injured person, or the legal representative of such injured

person in case of death as the result of such injuries, against any

other person or persons or corporation for the recovery of damages or

compensation on account of such injuries or for the death of such person

resulting therefrom, as well as to the proceeds of any settlement of any

such verdict, decision, decree, judgment or final order made or rendered

in any such suit, action or proceeding.

(ii) To the proceeds of the settlement or compromise of any such suit,

action or proceeding, effected, before any verdict, decision, decree,

judgment or final order is made or rendered therein, by any such injured

person or his legal representative in case of death, with any other

person, persons, or corporation claimed or alleged to be liable for said

injuries or death, or with any other person or persons or corporations

on account thereof.

(iii) To the proceeds of the settlement or compromise of any such

claim, demand, or cause of action effected, before the commencement of

any suit, action or proceeding thereon, by any such injured person or

his legal representative in case of death, with any other person, or

persons or corporation claimed or alleged to be liable for said injuries

or death, or with any other person or persons or corporation on account

thereof.

(b) In the case of a recovery by judgment, settlement or compromise

under sections one hundred nineteen and one hundred twenty or one

hundred thirty, one hundred thirty-two and one hundred thirty-three of

the decedent estate law, such lien shall attach only if the reasonable

expenses of medical aid, nursing and attention incident to the injury

are an element of the damages recoverable in such action.

3. After the filing of the notice and mailing of the copy and

statement as herein provided, no release of any judgment, claim, or

demand by such injured person shall be valid or effective against such

lien. The person or persons or corporation making any payment to such

injured person or his legal representative for the injury sustained

shall give notice by registered mail to the hospital having such lien

and shall for a period of one year from the date of the receipt of such

notice by such hospital as aforesaid remain liable to such hospital for

the amount of its reasonable charges as aforesaid due at the time of

such payment, to the extent of the full and true consideration paid or

given to the injured person or his legal representative, less the amount

of any other liens or claims against such moneys superior to such

hospital lien, and the state university or any such corporation or other

institution or body maintaining such hospital may within such period

enforce its lien by a suit at law against such person or persons or

corporation making any such payment or gift.

4. Every county clerk shall, at the expense of the county, provide a

suitable, well-bound book, to be called the hospital lien docket, in

which, upon the filing of any lien claim under the provisions of this

section, he shall enter the name of the injured person, the date of the

accident or event causing the injury, the name of the hospital or other

institution making the claim. The said clerk shall make a proper index

of the same in the name of the injured person.

5. Any person or persons, firm or firms, corporation or corporations

legally liable for such lien or against whom a claim shall be asserted

for compensation for such injuries, shall be permitted to examine the

records of such hospital or of any such corporation, or other

institution or body maintaining such hospital in reference to such

treatment, care and maintenance of such injured person, except such

confidential communications or records as are privileged, unless such

confidential status shall have been waived.

6. The lien of any such hospital under the provisions of this section

shall not apply to any award or settlement made pursuant to the

workmen's compensation law of this state, nor to the proceeds of any

such award or settlement, in respect to the injury for which a lien is

filed, nor in case the amount paid to the injured person or his

representative in the event of death in settlement or compromise is

three hundred dollars or less.

6-a. At any time after the filing and mailing of the notices of lien

as provided in subdivision one of this section, any such injured person,

or his legal representative in case of death, such hospital, or any

person, firm or corporation alleged to be liable to the injured person

or to his legal representative, may apply for an order determining the

validity of such lien and fixing the amount thereof. Such application

shall be made to the surrogate of the county wherein letters have been

issued to the executor or administrator of the injured person, or to any

court which would have jurisdiction of an action based upon contract for

a sum equal to the amount set forth in the notice of lien filed in the

office of the county clerk as provided in subdivision one of this

section; provided, however, that except for an application made to such

surrogate, the application shall be made in the county in which the

notice of lien has been filed. Such application shall be made upon not

less than eight nor more than ten days' notice. Notice of the

application shall be served upon the following persons, other than the

applicant: (a) the person, firm or corporation alleged to be liable to

the injured person or to his legal representative, (b) the hospital, or

the attorney, if known, who on its behalf filed said notice of lien, (c)

the injured person or his legal representative, (d) any insurance

carrier, if known, which has insured such person, firm or corporation

alleged to be liable, against such liability. If an action for damages

on account of such injury or death is pending, service upon any party

thereto may be made upon his or its attorney of record. Upon the return

of such application and the determination of the validity of such lien,

if it appears that there is a bona fide dispute as to the charges, an

immediate hearing to determine the amount of the reasonable charges of

such hospital for the treatment, care, and maintenance of such injured

person at cost rates shall forthwith be ordered before the court and a

jury, or, if a jury be waived, before the court or a referee. Upon such

hearing the party making the application or the hospital may apply to

the court for an order requiring the other to pay the reasonable

expenses, not including attorneys' fees, incurred in making proof. For

the purposes of this section, proof that the charges made by the

hospital to the injured person for bed, board, routine nursing, ordinary

dressings and drugs, x-ray services, laboratory tests, and other medical

care or treatment do not exceed the charges made by the hospital for

such services and supplies in the care of workmen's compensation

patients shall be prima facie evidence of the reasonableness of such

charges at cost rates in the care of the injured person. A copy of the

order upon such application, with notice of entry, shall be served by

the party making the application on every person, firm or corporation

served with notice of the application, or upon his or its attorney

appearing upon the application, and the sum fixed in said order shall

constitute the extent of the lien provided in this section.

7. The provisions of this section to the contrary notwithstanding, the

lien herein created shall be subject and subordinate to the lien of the

amount recovered by verdict, report, decision, judgment or decree,

settlement or compromise, of any attorney or attorneys retained by any

such injured person or his legal representative in case of death, to

prosecute his claim for damages for personal injuries or for the death

of the injured person, having or acquiring by virtue of such retainer a

lien on the cause of action of any such injured person, or his legal

representative in case of death, or on the verdict, report, decision,

judgment, decree made in, or any settlement or compromise of, any such

action or claim for damages for personal injuries or for the death of

such injured person; and, notwithstanding the provisions of this

section, the lien created hereunder in no case shall be operative so as

to create a priority or a precedence therefor as against any other lien,

debt or claim in the administration of the estate of a decedent or the

distribution of damages recovered or obtained on account of a wrongful

act, neglect or default causing a decedent's death, and the amount of

the debt or claim covered by such lien in such a case shall have the

same position as to priority and be payable in the same manner and to

the same extent as otherwise provided by law.

8. Execution upon any judgment obtained in an action based upon

injuries for which a lien has been filed as herein provided shall be

stayed until the lien has been satisfied or discharged in accordance

with the provisions of this section.

9. Upon the order of any court of record having jurisdiction in the

premises, any person, persons or corporation against whom a lien shall

have been filed and served may deposit the amount of any settlement or

judgment less the amount of any other liens or claims against such

moneys superior to such hospital lien, with the county treasurer in the

county in which the lien is filed, except, in a county within the city

of New York where such deposit shall be made with the commissioner of

finance of such city, and the person, persons or corporation so

depositing shall be discharged from all liability in connection with

such lien which lien shall attach to the fund so deposited.

10. Any such lien may be enforced by action against the person,

persons or corporations claimed to be liable or against the fund

deposited as hereinbefore provided in any court of record.

11. The filing of a notice of lien of a hospital under the provision

of this section shall be valid for a period of ten years only. The

validity of the filing may be extended for successive additional period

of ten years each from the date of refiling, by filing in the proper

county clerk's office, a copy of the original notice of lien within

ninety days next preceding the expiration of each period, with a

statement attached, signed by the lienor, showing the amount remaining

to be paid thereon. Such copy, with statement attached, shall be filed

and entered in the same manner as a notice of hospital lien filed and

entered for the first time, and the county clerk shall be entitled to a

like fee as upon the original filing. Every renewal of a hospital lien

must be stamped or marked "renewal," and contain therein reference to

the date of filing of the lien which it is desired to continue for a

further period, and the date of filing of the latest previous renewal

thereof. The county clerk is authorized to destroy any and all notices

of liens of hospitals filed in his office pursuant to the provisions of

this section, after the expiration of twelve years from the date of

filing, and any and all indexes to such notices of lien, after the

expiration of twenty-five years from the date of the last entry of a

lien therein.

Corporate mortgages against real and personal property. 1. A

mortgage creating a lien upon real and personal property, executed by a

corporation as security for the payment of bonds, notes or other

evidences of indebtedness, issued by such corporation or any other

corporation, or executed by any telegraph, telephone, electric light,

railroad, street railway or omnibus corporation, and recorded as a

mortgage of real property in each county where such real property is

located or through which the line or route of such telegraph, telephone,

electric light, railroad, street railway or omnibus corporation runs,

need not be filed or refiled as a chattel mortgage or perfected by

filing in accordance with part five of article nine of the uniform

commercial code in any county where the mortgage is recorded, but filing

in accordance with that part in the department of state only is required

to perfect a security interest in the personal property or fixtures

covered by such a mortgage hereafter recorded.

2. When any such original mortgage provides or provided for the

inclusion of property, either personal, or real and personal, thereafter

acquired, a mortgage of such after-acquired property supplemental to

such mortgage may be recorded as a mortgage of real property in each

county where the original mortgage is recorded and in each county where

such after-acquired real property is located and when so recorded need

not be filed or refiled as a chattel mortgage or perfected by filing in

accordance with part five of article nine of the uniform commercial code

in any county where both the original and the supplemental mortgage are

recorded, but filing in accordance with that part in the department of

state only is required to perfect a security interest in the personal

property or fixtures covered by such a supplemental mortgage hereafter

recorded.

3. This section does not require the recording of a supplemental

mortgage or filing in accordance with part five of article nine of the

uniform commercial code in the department of state to perfect a mortgage

of or security interest in after-acquired property when any such

original mortgage provides or provided for the inclusion of such

after-acquired property and decisional law prior to the enactment or

amendment of this section, or of former section two hundred thirty-one

of this chapter, recognized the validity or enforceability of such a

provision in such an original mortgage without the execution or

recording of a supplemental mortgage covering such after-acquired

property, nor does section 9--311 of the uniform commercial code require

the perfection of a security interest in railway rolling stock under

section twenty-c of title forty-nine of the United States code (as added

by the act of July sixteenth, nineteen hundred fifty-two, chapter eight

hundred eighty-one, 66 Stat. 724) as now in force or as hereafter

amended.

Sale of personal property to satisfy a lien. A lien against

personal property, other than the lien of a warehouse pursuant to

section 7--209 of the uniform commercial code, the lien of a carrier

pursuant to section 7--307 of the uniform commercial code, a security

interest in goods and the lien of a keeper of a hotel, apartment hotel,

inn, boarding-house or lodging-house, except an immigrant lodging-house,

if in the legal possession of the lienor, may be satisfied by the sale

of such property according to the provisions of this article.

Notice of sale. Before such sale is held the lienor shall serve

a notice upon the owner with due diligence within such county, if such

owner can be found where such lien arose, if not then to the person for

whose account the same is then held personally, provided such service

can be made with due diligence within the county where such lien arose,

but if such owner or person cannot with due diligence be found within

such county, or if the property affected, other than a security, is a

motor vehicle that is to be sold pursuant to subdivision three of

section two hundred two of this article of a value of less than five

hundred dollars or other property that is of a value of less than one

hundred dollars, then such notice shall be served by mailing it to the

owner at his last known place of residence, or to his last known

post-office address or if the owner's place of residence or post-office

address is not known, then to the last known place of residence or last

known post-office address of the person for whose account the same is

then held personally. Any notice permitted herein to be served by mail

shall be sent by certified mail, return receipt requested, and by

first-class mail. A like notice shall be served in the same way upon any

person who shall have given to the lienor notice of an interest in the

property subject to the lien and upon any person who has perfected a

security interest in the property by filing a financing statement

pursuant to the provisions of the uniform commercial code or who is

listed as lienholder upon the certificate of title of the property

pursuant to the provisions of the vehicle and traffic law. Such notice

shall contain a statement of the following facts:

1. The nature of the debt or the agreement under which the lien arose,

with an itemized statement of the claim and the time when due;

2. A brief description of the personal property against which the lien

exists;

3. The estimated value of such property;

4. The amount of such lien, at the date of the notice.

It shall also require such owner or any such person to pay the amount

of such lien, on or before a day mentioned therein, not less than ten

days from the service thereof, and shall state the time when and place

where such property will be sold, if such amount is not paid; and it

shall state that the owner or any such person is entitled to bring a

proceeding under section two hundred one-a of this article within ten

days of the service of notice if he disputes the validity of the lien or

the amount claimed. If the agreement on which the lien is based provides

for the continuous care of property the lienor is also entitled to

receive all sums which may accrue under the agreement, subsequent to the

notice and prior to payment or a sale of the property; and the notice

shall contain a statement that such additional sum is demanded. Such

notice shall be verified by the lienor to the effect that the lien upon

such property is valid, that the debt upon which such lien is founded is

due and has not been paid and that the facts stated in such notice are

true to the best of his knowledge and belief.

Proceeding to determine validity of liens. Within ten days

after service of the notice of sale, the owner or any person entitled to

notice pursuant to section two hundred one of this article may commence

a special proceeding to determine the validity of the lien. The special

proceeding may be brought in any court which would have jurisdiction to

render a judgment for a sum equal to the amount of the lien. If the

owner or any such person shall show that the lienor is not entitled to

claim a lien in the property, or that all or part of the amount claimed

by the lienor has not been properly charged to the account of such owner

or such person, or, as the case may be, that all or part of such amount

exceeds the fair and reasonable value of the services performed by the

lienor, the court shall direct the entry of judgment cancelling the lien

or reducing the amount claimed thereunder accordingly. If the lienor

shall establish the validity of the lien, in whole or in part, the

judgment shall fix the amount thereof, and shall provide that the sale

may proceed upon the expiration of five days after service of a copy of

the judgment together with notice of entry thereof upon the owner or

such person, unless the property is redeemed prior thereto pursuant to

section two hundred three of this article. If the lien is cancelled, the

judgment shall provide that, upon service of a copy of the judgment

together with notice of entry thereof upon the lienor, the owner or such

person shall be entitled to possession of the property.

Sale to be advertised; exception. 1. Each sale of personal

property of a value of one hundred dollars or more, or of any security,

to satisfy a lien thereon shall be at public auction to the highest

bidder, and shall be held in the city or town where the lien was

acquired. After the time for the payment of the amount of the lien

specified in the notice required to be served by section two hundred one

or two hundred one-a of this article, notice of such sale shall be

published once a week, for two consecutive weeks, in a newspaper

published in the town or city where such sale is to be held, and such

sale shall be held not less than fifteen days from the first

publication; if there be no newspaper published in such town, such

notice shall be posted at least ten days before such sale in not less

than six conspicuous places therein. Such notice shall describe the

property to be sold and shall state the name of the person for whose

account the same is then held and the time and place of such sale,

provided, that if the property to be sold is a security, the description

in such notice shall consist of a statement of the name of the issuer or

obligor, the state of incorporation or organization of the issuer or

obligor, the amount and class of the security and the address of the

issuer or obligor last known to the lienor. For the purpose of this

article, the term "security" shall include common and preferred stocks

and bonds, debentures, notes and other obligations, corporate or

otherwise, for the payment of money.

2. Each sale of personal property of a value of less than one hundred

dollars, other than a security, to satisfy a lien thereon, shall be made

pursuant to the provisions of subdivision one hereof, or at a bona fide

private sale in the city or town where the lien was acquired. A bona

fide private sale pursuant to this section shall not be made until the

expiration of six months after the time for the payment of the amount of

the lien specified in the notice required to be served by section two

hundred one or two hundred one-a of this article. Notice of the bona

fide private sale shall be posted at least twenty days before such sale

in a conspicuous place on the premises where the personal property was

left or delivered by the owner. Such notice shall either (a) contain the

name and address of the owner and a brief description of the property,

or (b) provide that all property left on or before a specified date will

be subject to sale, and shall also specify the time and place of sale.

3. Notwithstanding subdivisions one and two of this section, sale of a

motor vehicle having a wholesale value, taking into consideration the

condition of the vehicle, of less than five hundred dollars to satisfy a

lien for towing and storage under section one hundred eighty-four of

this chapter, may be made directly to a registered vehicle dismantler or

licensed scrap processor, both as defined in section four hundred

fifteen-a of the vehicle and traffic law, on the condition that the

motor vehicle shall never be titled again and must be dismantled or

scrapped. Such sale shall not occur prior to thirty days after notice is

mailed pursuant to section two hundred one of this article or sixty days

after the date of the initial tow, whichever is later.

Sale of a security. A description of a security, as such term

is defined in section two hundred two, substantially similar to the

description specified in said section shall, in the absence of agreement

to the contrary and unless otherwise provided by statute, be deemed

sufficient for the purposes of a notice of sale of such security at

public auction to satisfy a lien thereon although such sale is not made

pursuant to the provisions of this article. Nothing in this section or

in section two hundred two or in section two hundred two-b shall be

construed to invalidate any sale of such a security made in accordance

with the provisions of an applicable agreement.

Pledgee may buy at public sale. Unless the pledge agreement

otherwise provides, in all cases where a pledgee may lawfully sell

pledged property and the property is sold at public sale, the pledgee,

or his assignee or the legal representative of either, may fairly and in

good faith purchase the pledged property or any part thereof at the

sale. This section does not apply to a sale of property pawned or

pledged with a collateral loan broker.

Redemption before sale. At any time before such property is so

sold, the owner thereof or any person entitled to notice of sale

pursuant to section two hundred one of this article may redeem the

property by paying to the lienor the amount due on account of the lien,

and whatever legitimate expenses have been incurred at the time of such

payment in serving the notice and advertising the sale as required in

this article. Upon making such payment, any of such persons are entitled

to the possession thereof.

Disposition of proceeds. Of the proceeds of such sale, the

lienor shall retain an amount sufficient to satisfy his lien, and the

expenses of advertisement and sale. The balance of such proceeds, if

any, shall be held by the lienor subject to the demand of the owner, or

his assignee or legal representative, or any person entitled to notice

of sale pursuant to section two hundred one of this article. A notice

that such balance is so held shall be served personally or by mail upon

all such persons. If such balance is not claimed by any of such persons

within thirty days from the day of sale, such balance shall be deposited

with the treasurer or chamberlain of the city or village, or the

commissioner of finance in the city of New York, or the supervisor of

the town, where such sale was held. There shall be filed with such

deposit, the affidavit of the lienor, stating the name and place of

business or residence of such persons, if known, the articles sold, the

prices obtained therefor, that the notice required by this article was

duly served and how served upon such persons, and that such sale was

legally and how advertised. There shall also be filed therewith a copy

of the notice or judgment served upon such persons and the notice of

sale published or posted as required by this article. The officer with

whom such balance is deposited shall credit the same to such persons,

and pay the same to such persons on demand and satisfactory evidence of

identity. If such balance remains in the possession of such officer for

a period of five years, unclaimed by a person legally entitled thereto,

it shall be transferred to the general funds of the town, village or

city, and be applied and used as other moneys belonging to such town,

village or city.

Remedy not exclusive. The preceding provisions of this article

do not preclude any other remedy by action or otherwise, now existing,

for the enforcement of a lien against personal property, or bar the

right to recover so much of the debt as shall not be paid by the

proceeds of the sale of the property.

Enforcement by action; when and in what courts; procedure in

action to foreclose real property mortgage applicable in actions to

foreclose a mortgage or other lien. An action may be maintained to

foreclose a lien upon a chattel, for a sum of money, in any case where

such a lien exists at the commencement of the action. The action may be

brought in any court, of record or not of record, which would have

jurisdiction to render a judgment, in an action founded upon a contract,

for a sum equal to the amount of the lien. For the purposes of this

section and of sections two hundred seven to two hundred ten inclusive a

chattel mortgage to secure the payment of a loan of money or other debt,

or the purchase price of chattels, a contract of conditional sale of

personal property, a hiring of personal property where title is not to

vest in the person hiring until payment of a certain sum and a security

interest created by a security agreement in personal property, shall be

deemed a lien upon a chattel. The procedure in an action to foreclose a

mortgage on real property, in so far as it may be applicable, shall

apply in actions to foreclose a mortgage or other lien on chattels or

other personal property.

Warrant to seize chattel; proceedings thereupon. If the

plaintiff is not in possession of the chattel, a warrant may be granted

by the court, or a judge thereof, commanding the sheriff, or such

enforcement officer as is provided by law to execute the mandates of the

particular court, to seize the chattel and safely keep it to abide the

final judgment in the action. The provisions of the civil practice law

and rules, and the provisions of the court act of the particular court,

relating to an order of attachment shall apply to such warrant of

seizure, and to the proceedings to procure it, and after it has been

issued, except as otherwise expressly prescribed in this article.

Judgment. In an action brought in a court specified in the last

section, final judgment, in favor of the plaintiff, must specify the

amount of the lien or the monetary obligation secured by the security

interest, and direct a sale of the chattel to satisfy the same and the

costs, if any, by a referee appointed thereby, or an officer designated

therein, in like manner as where a sheriff sells personal property by

virtue of an execution; and the application by him of the proceeds of

the sale, less his fees and expenses, to the payment of the amount of

the lien or the monetary obligation secured by the security interest,

and the costs of the action. It must also provide for the payment of the

surplus to the owner of the chattel, and for the safe keeping of the

surplus, if necessary, until it is claimed by him. If a defendant, upon

whom the summons is personally served, is liable for the amount of the

lien or the monetary obligation secured by the security interest, or for

any part thereof, it may also award payment accordingly.

Action in inferior court. Where the action is brought in a

court, other than one of those specified in section two hundred and

seven, if the plaintiff is not in possession of the chattel, a warrant,

commanding the proper officer to seize the chattel, and safely keep it

to abide the judgment, may be issued, in like manner as a warrant of

attachment may be issued in an action founded upon a contract, brought

in the same court; and the provisions of law, applicable to a warrant of

attachment, issued out of that court, apply to a warrant, issued as

prescribed in this section, and to the proceedings to procure it, and

after it has been issued; except as otherwise specified in the judgment.

A judgment in favor of the plaintiff, in such an action, must correspond

to a judgment, rendered as prescribed in the last section, except that

it must direct the sale of the chattel by an officer to whom an

execution, issued out of the court, may be directed; and the payment of

the surplus, if its safekeeping is necessary, to the county treasurer,

for the benefit of the owner.

Application. Sections two hundred and six to two hundred nine

inclusive do not affect any existing right or remedy to foreclose or

satisfy a lien upon, or a security interest in a chattel, without

action; and they do not apply to a case, where another mode of enforcing

a lien upon a chattel is specially prescribed by law.

Arrears/past due support. 1. The New York state office of

temporary and disability assistance, or a local social services

district, or its authorized representative on behalf of persons

receiving services under title six-A of article three of the social

services law shall have a lien against personal property owned by a

support obligor when such support obligor is or was under a court order

to pay child support or combined child and spousal support to a support

collection unit and such support obligor has accumulated support

arrears/past due support in an amount equal to or greater than the

amount of support due pursuant to such order for a period of four

months. Such lien shall be in an amount sufficient to satisfy such

support arrears/past due support. Said lien shall be perfected in the

case of a vehicle as that term is defined in section two thousand one

hundred one of the vehicle and traffic law with the department of motor

vehicles. The filing of a notice of lien or of a release of lien shall

be completed without payment of a fee. The filing of notice of lien or

release of lien may be done by electronic means.

2. The state shall accord full faith and credit to liens which arise

in another state when such state agency, party or other entity seeking

to enforce such a lien complies with the procedural rules relating to

such liens as provided for in section one hundred eleven-u of the social

services law, article forty-six of the vehicle and traffic law or

article nine of this chapter as is appropriate. Such rules may not

require judicial notice or hearing prior to enforcement of such a lien

and enforcement shall be governed by article nine of this chapter.

3. For the purposes of determining whether a support obligor has

accumulated support arrears/past due support for a period of four

months, the amount of any retroactive support, other than periodic

payments of retroactive support which are past due, shall not be

included in the calculation of arrears/past due support pursuant to this

section; however, if at least four months of support arrears/past due

support have accumulated subsequent to the date of the court order, the

entire amount of any retroactive support may be collected pursuant to

the provision of this section or as otherwise authorized by law.

Place of filing notices of liens and certificates and notices

affecting such liens. 1. Notices of liens upon real property for taxes

payable to the United States of America or otherwise created by federal

law in favor of the United States of America or one or more of its

instrumentalities, hereafter in this article referred to as "federal

liens" and certificates and notices affecting such liens shall be filed

in the office of the clerk of the county in which real property subject

to any such lien is situated, except that if real property subject to

any such lien is situated in the county of Kings, the county of Queens,

the county of New York or the county of Bronx they shall be filed in the

office of the city register of the city of New York in such county. If

such property be situated in two or more counties, such notice or

certificate shall be filed in the office of the clerk or the city

register, as the case may be, in each of such counties.

2. Notices of federal liens upon tangible or intangible personal

property and certificates and notices affecting such liens shall be

filed as follows:

(a) If the person against whose interest the lien applies is a

corporation or a partnership, as defined in the internal revenue laws of

the United States, in the office of the secretary of state;

(b) In all other cases, in the office of the clerk of the county where

the lienee, if a resident of the state, resides at the time of filing of

the notice of lien, except that if such lienee resides at such time in

the county of Kings, the county of Queens, the county of New York or the

county of Bronx, the place for filing such liens shall be in the office

of the city register of the city of New York in such county. If a notice

of lien was filed in the office of a town or city clerk outside the city

of New York, prior to July third, nineteen hundred sixty-six, any

certificate or notice affecting such lien shall, prior to September

first, nineteen hundred sixty-eight, or if the documents referred to in

subdivision three of section two hundred forty-one hereof are delivered

pursuant to such subsection before September first, nineteen hundred

sixty-eight, then prior to the date of such delivery, be filed in such

office. On and after September first, nineteen hundred sixty-eight or

such earlier date, as the case may be, such certificates or notices

shall be filed in the office of the clerk of the county within which the

town or city clerk's office, where the notice of lien was originally

filed, is located.

Files, indexes, and entries. 1. When a notice of federal lien

or a notice of revocation of any certificate described in subdivision

one of section two hundred forty-two is presented to the secretary of

state for filing, he or she shall cause such notice to be marked or

assigned a consecutive file number, held and indexed in accordance with

the provisions of section 9--519 of the uniform commercial code as if

such notice were a financing statement within the meaning of the uniform

commercial code; provided however that an acceptable alternative to

filing such notice in a paper format shall be the filing of such notice

by computerized methods established by the secretary of state such that

each notice shall constitute a unique computerized informational record

and each such record shall be assigned a consecutive file number, held

and indexed in accordance with section 9--519 of the uniform commercial

code.

2. The city register of the city of New York and the various county

clerks shall procure, at the expense of the city or county, a file to be

styled and labeled "Federal lien notices", and an index book or card

index system or computerized index system to be styled and labeled

"Federal lien index." When a notice of any such federal lien is

presented to any such officer for filing, he shall endorse thereon his

serial number and the date, hour and minute of its receipt, file it in

numerical order and shall enter it alphabetically in the federal lien

index. The entry shall show the name and residence of the taxpayer named

in the notice, the aforesaid endorsed serial number, the date of filing

and the total amount of the lien, including interest and penalty.

Whenever the federal lien index prescribed by this subdivision shall be

recopied or reindexed, the entries therein shall show the information

required by this subdivision.

3. The town and city clerks outside the city of New York in whose

offices notices of federal tax liens have been filed on or before July

second, nineteen hundred sixty-six shall, on or before September first,

nineteen hundred sixty-eight deliver all such notices of liens and

certificates and notices affecting such liens to the clerk of the county

within which such town or city clerk's office is located, and each such

county clerk shall receive such documents and maintain them in a file

styled and labeled "Federal tax lien notices filed with clerks of towns

and cities in this county prior to July 3, 1966." Each such clerk shall

also receive and maintain in such file any certificates and notices

which affect such documents and which may be filed pursuant to

subdivision two (b) of section two hundred forty hereof at any time in

the future. Each such county clerk shall procure at the expense of the

county an index book or card index system to be styled and labeled

"Federal tax lien index of liens filed with clerks of towns and cities

in this county prior to July 3, 1966" and shall enter therein a record

of each notice of lien or certificate received from any such town or

city clerk and any notices or certificates received thereafter affecting

such documents. The entry shall show the name and residence of the

taxpayer named in the notice, the serial number, if any, of the original

recording officer, the date of original filing, and the total amount of

tax, interest and penalty shown on such notice. Whenever the federal tax

lien index prescribed by this subdivision shall be recopied or

reindexed, the entries therein shall show the information required by

this subdivision.

4. On or before November first, nineteen hundred eighty-seven, the

secretary of state shall cause a search to be made of the records of the

clerk of each United States district court within the state for notices

of federal liens filed therein from January first, nineteen hundred

seventy-four until the effective date of this subdivision. On or before

December first, nineteen hundred eighty-seven, the secretary of state

shall file in his office such information as is required pursuant to

paragraph (a) of subdivision two of section two hundred forty of this

article and shall forward to each county clerk the notices of federal

liens affecting real property situated within each such county or

affecting a lienee who is a resident of each such county or if there are

none, a certificate so stating, which information shall be filed by the

county clerk on or before January first, nineteen hundred eighty-eight.

Each county clerk shall maintain such documents in a file styled and

labeled "Federal lien notices filed with the clerk of the United States

district court for this county subsequent to January 1, 1974." Each such

clerk shall also receive and maintain in such file any certificates and

notices which affect such documents and which may be filed pursuant to

section two hundred forty of this article at any time in the future.

Each such county clerk shall procure at the expense of the county an

index book or card index system to be styled and labeled "Federal lien

index of liens filed with the clerk of the United States district court

for this county subsequent to January 1, 1974" and shall enter therein a

record of each such notice of lien or certificate and any notices or

certificates received thereafter affecting such documents. The entry

shall show the name and residence of the lienee named in the notice, the

serial number, if any, of the original recording officer, the date of

original filing, and the total amount of lien, including interest and

penalty shown on such notice. Whenever the federal lien index prescribed

by this subdivision shall be recopied or reindexed, the entries therein

shall show the information required by this subdivision. Notwithstanding

any contrary provision of this subdivision any county clerk's office

having the capability of incorporating such documents into existing

federal lien records may make such incorporation rather than creating

and maintaining the separate files required by this subdivision.

Non-attachment, release, discharge and subordination of liens.

1. When a certificate of release, non-attachment, discharge or

subordination of any federal lien is presented for filing in the office

of the secretary of state, he or she shall

(a) cause a certificate of release or non-attachment to be marked or

assigned a consecutive file number, held and indexed as if such

certificate were a termination statement within the meaning of the

uniform commercial code, except that the notice of lien to which such

certificate relates shall not be removed from the files or purged from

the computerized system for a period of three years, and

(b) cause a certificate of discharge or subordination to be held,

marked or assigned a consecutive file number and indexed as if such

certificate were a release of collateral within the meaning of the

uniform commercial code.

An acceptable alternative to filing such certificate of release,

non-attachment, discharge or subordination in a paper format shall be

filing of such certificate by computerized methods established by the

secretary of state such that each certificate shall constitute a unique

computerized informational record and each such record shall be assigned

a consecutive file number, held and indexed as if such were a

termination or release as the case may require within the meaning of the

uniform commercial code.

2. When any such certificate, or a notice of revocation of any such

certificate, is presented for filing in the office of the city register

of the city of New York or the county clerk where the notice of lien is

filed, such officer shall permanently attach the certificate to the

notice of lien; and shall enter the certificate or notice, with the

date, in the federal lien index or card index system or computerized

index system on the line where the notice of lien is entered.

Fees. The fee to be paid to the secretary of state or a clerk

or register for filing and indexing each notice of lien or certificate

or notice affecting any such lien shall be determined in accordance with

the provisions of section ninety-six-a of the executive law. Such

officers shall bill the district directors of internal revenue or other

appropriate federal officers on a monthly basis for fees for documents

filed by them.

Execution of notices and certificates. Certification by the

secretary of the treasury of the United States or his delegate of

notices of liens or certificates or notices affecting such liens

entitles them to be filed. No other attestation, certification or

acknowledgment is necessary.

Purpose of article. This article is passed for the purpose of

authorizing the filing of notices of liens in accordance with the

provisions of the statutes of the United States of America applicable

thereto.

Notices of filing liens and certificate of discharge. Notice of

surety bond liens in favor of the people of the state of New York as

provided in section two hundred forty-six of this article and

certificates discharging such liens may be filed in the office of the

recording officer of the county in which real property subject to any

such lien is situated, and if such property be situated in two or more

counties, such notice may be filed in the office of the recording

officer of each of such counties. Until the filing of such notice, such

lien shall not be valid as against any mortgagee, purchaser or judgment

creditor having or claiming any right, title or interest in or to or

lien against such property, or any part thereof.

Bail bond to act as lien on real estate. Upon the execution

of any bail bond and an affidavit of justification as set forth in the

provisions of subdivision four of section 520.20 of the criminal

procedure law, between any person or corporation and the people of the

state of New York, there shall attach to the real property described in

the said affidavit of justification as hereinafter provided, a lien in

favor of the bail bond, which lien shall remain in full force and effect

until a certificate of discharge has been filed pursuant to the

provisions of section two hundred and forty-six or such lien has been

discharged pursuant to the provisions of section two hundred and

forty-eight of the lien law. Whenever final judgment has been rendered

in the criminal action or proceeding for which such bail bond shall have

been executed or whenever the bail has been exonerated by order of the

court, the attorney general of the state of New York or the district

attorney of the county in which such action or proceeding is pending or

maintained, shall execute a certificate of discharge of such lien,

provided it shall appear that the prosecution has lost no right

thereunder.

Notice of lien of bail bond in criminal actions or

proceedings. A notice of lien of bail bond on real estate shall be

filed in the office of the recording officer of the county in which such

real estate given as security in a bail bond in a criminal action or

proceeding is located, or if such property is situated in two or more

counties the notice of lien shall be filed in the office of the

recording officer of each of such counties, the provisions of which

notice of lien shall be entered in a register kept for that purpose

showing the name of the people of the state of New York as lienors and

the names and addresses of the principal and the surety together with

the name of the owner of such real estate and its location according to

block, lot and section on the land map or other similar description and

containing a brief recital of the terms of such bail bond as provided in

article ten-b of the lien law, which said notice shall be substantially

in the following form:

NOTICE OF LIEN.

To ............................................, clerk (or register)

of the county of ................................, and all others whom

it may concern:

Please take notice that ..............................................

1. The people of the state of New York represented by

........................................., attorney general of the state

of New York, (or district attorney of the county of ...............) has

and claims a bail bond lien on the following described real property.

2. The name of the owner of the real property against whose interest

therein a lien is claimed is .......................................

and the interest of the owner so far as known to the lienors is a fee

simple absolute.

3. The name and address of the surety who entered into the undertaking

of bail with the people of the state of New York is

............................ residing at ..............................

street, in the borough of ................, city of ...................

(or town, village or county); the name and address of the principal for

whom the surety has entered into such undertaking of bail is residing at

..................... street, in the borough of ..................., city

of ...................... (or town, village or county). The type of

undertaking of bail and the amount thereof is a consolidated bail bond

in the sum of ......................

4. The criminal charge against the principal for which such

undertaking of bail is given is ............................ The date of

such undertaking and place of execution thereof are ..................

19..., at the ..................... court of the county of

..................... (or city, town or village).

5. The property subject to the lien is situated in the borough of

..............................., county of ...........................

city of ......................... It is known as number

.................... street or avenue, and is described as follows:

Description.

Dated, ..................., 19 .....................

attorney general of the state of New York

(district attorney of the county of ......)

By

assistant attorney general

(assistant district attorney or

deputy assistant district attorney).

State of New York )

) ss.:

County of )

.................................. , being duly sworn, says that he is an

assistant attorney general (or assistant district attorney, or deputy

assistant district attorney, as the case may be) in the office of the

honorable ......................, attorney general of the state of New

York (or district attorney of the county of .......................),

the claimant for the people of the state of New York mentioned in the

foregoing notice of lien. That he has read the said notice and knows the

contents thereof and that the statements contained therein are true of

his own knowledge, except as to those matters therein stated to be

alleged upon information and belief and that as to those matters he

believes them to be true.

..................................

Sworn to before me this

... day .... ...., 19...

Notary public.

..............(commissioner of deeds of the city of .................).

Files, indexes and entries. The recording officer of each

county shall procure, at the expense of the county, a file to be styled

and labeled "State criminal surety bond lien notices", and an index book

or card index system to be styled and labeled "State criminal surety

bond lien index." When a notice of any such criminal surety bond lien is

presented to him for filing, he shall file it in numerical order in the

file and shall enter it alphabetically in relation to the name of the

principal and the surety and the name of the people of the state of New

York as lienors in the state criminal surety bond lien index. The entry

shall show, in addition to the name of the people of the state of New

York as lienors and the names and addresses of the principal and the

surety, the name of the owner of such real estate and its location

according to block, lot and section on the land map or other similar

description, the criminal charge or character of the proceeding, the

amount of the bond, the name and title of the judge or magistrate

accepting the bond and the date thereof, as well as the name and

location of the court where such bond is filed.

Indexing of criminal surety bond liens. In counties where the

recording officer indexes recorded or filed documents affecting real

estate under a section and block system based on a land map of such a

county, such recording officer shall also index "Criminal Surety Bond

Liens," in the block index of mortgages, by entering the name of the

owner of such real estate in the column labeled and entitled

"Mortgagors" and the words "Criminal Surety Bond Lien" in the column

labeled and entitled "Mortgagees," together with the filing date and the

filing index number of such lien.

Discretion of recording officer. The recording officer may

also index these liens in any additional manner which in his discretion,

may be essential.

Electronics indexes. A county clerk may adopt a new indexing

system utilizing electro-mechanical, electronic or any other method he

deems suitable for maintaining the indexes.

Discharge of liens. When a certificate of discharge of any such

surety bond lien, issued by the proper officer, is presented for filing

in the office of the recording officer where the notice of lien is

filed, such officer shall permanently attach the certificate of

discharge to the notice of lien; and shall enter the certificate of

discharge, with the date, in the state criminal surety bond lien index

or card index system on the line where the notice of lien is entered. In

addition, any such surety bond lien shall be discharged as a lien

against the premises set forth therein after the lapse of ten years from

the filing thereof provided however that such surety bond lien shall,

upon the order of a court of competent jurisdiction, be extended beyond

a period of ten years from the date of filing.

Fees. Neither the attorney-general of the state of New York nor

any district attorney of any county of the state shall be charged a fee

by the recording officer for filing or indexing any such notice of lien,

but the fee to be paid a recording officer for filing and indexing a

certificate of discharge of any such lien on behalf of any other person

shall be two dollars and fifty cents.

Form of certificate of transcript of lien. The recording

officer shall upon request issue a certificate or transcript of any

criminal surety bond lien on file in his office on the following or

substantially similar form, and the fee to be paid to the recording

officer for such certificate or transcript shall be fifty cents, except

that this fee shall not apply to state or county officers as related in

section two hundred forty-nine of the lien law. The certificate or

transcript shall be substantially in the following form:

No. ...... No. ..........

STUB STATE OF NEW YORK,

....... COUNTY OF

)

) ss:

)

Ser. No......... I, ............................... Register of the

Date of Criminal said county of ....................................

Surety Bond Lien DO HEREBY CERTIFY, that a certain Criminal Surety

................ Bond Lien, bearing date the .......................

................ day of ...........................................

Principal 19 ...., made by,

................ Principals

Surety Sureties

Sections ....... and filed in this office on the ...................

Blocks ......... day of ......... 19..., in Sections ...............

On Land Map of Boro/ .............. Blocks ............... on the Land

County of, Map of the County of ..............................

.............. and known as number ........................ Street/

Date, ........... Avenue, Boro .......................... N.Y.; the

Amount of Bail, .... Deed to which Real Property was recorded on the ...

day of ............. 19 ...., in Liber ............

Page ........ of Conveyances in the office of the

Register/County Clerk of the County of ............

and was given as Bail in the amount of ............

and was filed in my office on the .................

day of ....... 19.., AND IS NOT DISCHARGED OF RECORD.

Given under my hand and Official

Seal, this ..... day of ... 19...

.................Register

.................Dep'y Register

Certificate or transcript of discharge of lien. The recording

officer shall upon request issue a certificate or transcript of a

certificate of discharge of a criminal bail surety bond lien on file in

his office on the following or substantially similar form, and the fee

to be paid to the recording officer for such certificate or transcript

of discharge shall be fifty cents, except that this fee shall not apply

to state or county officers as related in section two hundred forty-nine

of the lien law. The certificate or transcript form shall be

substantially in the following form:

No. ......

STATE OF NEW YORK, )

) ss:

COUNTY OF.......... )

I, ................. Register of the county of ............ DO HEREBY

CERTIFY, that a certain Criminal Bail Bond Lien No. ........ dated this

...... day of ......... 19...., made by ............ Sureties, to the

People of the State of New York as a lien against Real Property, located

in Sections, ........ Blocks ........, known as No. ............

Street/Avenue, in the County of ............., as bail in the amount of

........... Dollars, and signed by .................. District Attorney

of the County of ................ and filed in my office on the

...... day of ........... 19..., IS DISCHARGED OF RECORD IN THIS OFFICE.

Given under my hand and Official Seal, this ..... day of

.................... 19....,

.................................. Register.

.................................. Dep'y Register.

* § 250. Laws repealed. Of the laws enumerated in the schedule hereto

annexed, that portion specified in the last column is hereby repealed.

* NB There are 2 § 250's

* § 251. When to take effect. This chapter shall take effect

immediately.

* NB There are 2 § 251's