N.Y. Lien Law § 19: Discharge of lien for private improvement

§ 19. 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law, and has not been revoked, no justification or notice thereof shall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.