Properly serving a lien law Section 59 Demand - by Bret McCabe

Many attorneys operating within the construction space are familiar with the provisions of New York Lien Law, which allow for the discharge of a Mechanic’s Lien in the event the lienor does not commence an action to enforce following the service of a “Section 59 Demand”.

Indeed, Lien Law § 59 allows for the cancellation of a Mechanic’s Lien if, following proper service of said demand, the lienor has not commenced its foreclosure action within the time specified therein. It is noteworthy, however, that the demand must provide at least 30 days for the lienor to commence its action, with the clock for such minimum deadline only   commencing at the time of service.

In this regard, Section 59 specifies that service of the demand must be “either personally” effectuated or accomplished by “leaving it at the [lienor’s] last known place of residence, with a person of suitable age, with direction to deliver it to the lienor”.

Consequently, any attempt at starting the clock for the foreclosure action (and enforcement of the lien) must consider that personal service of the § 59 Demand is a statutory requirement when seeking discharge.

In certain instances, however, attorneys may seek to “personally” serve such demand by the oft-utilized “nail and mail” process. However, the provisions of the CPLR contain some nuances when calculating the “nail and mail” service date, and when proper service has actually been accomplished.

In fact, when attempting “nail and mail” – the date of service is set at 10 days following the filing of the proof of service, and as such, any demand for enforcement must account for the filing and subsequent 10-day period as well.

In the absence of such proper service, any attempt at discharge may fall flat, and the demand for enforcement will arguably be deemed improper.

Bret McCabe is a member of the construction and litigation practice group and is a partner at Forchelli Deegan Terrana LLP, Uniondale, N.Y.