Itemization of Mechanic’s Lien Not Necessary Where Construction Contract Apprised Owner of Lienor’s Claim

New York Lien Law § 38 states that the holder of a mechanic’s 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 [or she] claims a lien, and which shall also set forth the terms of the contract under which such items were furnished.” In Associated Building Services Inc. v Pentecostal Faith Church, 112 A.D.3d 1130, 976 N.Y.S.2d 699 (3rd Dept. 2013), the Court held that a lienor is not always required to provide an itemization of labor and materials furnished to substantiate its mechanic’s lien.

The lienor argued that it was not required to provide such a statement because the labor and materials had been furnished pursuant to a construction contract that had been performed in full. The Appellate Court agreed. The Court found that the statute only required the lienor to supply an itemized statement when itemization is necessary to apprise the owner of the details of the lienor’s claim. Since there was a construction contract that the lienor alleged was performed in full, itemization would be “superfluous”. The Court reasoned:

“While [the] language [of Lien Law § 38] appears to confer an unrestricted right to an itemization of labor and materials, such is not the case … Itemization is instead required only when it is necessary to apprise the owner of the details of the lienor’s claim … .

Turning to the case at hand, plaintiff asserts that it performed the 2011 construction contract in full, and its claim with regard to that contract is based on an express contract for a specific sum” … Defendants do not dispute that they were fully aware of the terms of that contract and, indeed, they attached a copy of the written contract to their answer.”

The Appellate Division, Third Department, decision in Associated Building Services Inc., is in harmony with case law from New York’s First and Second Departments holding that itemization of labor and materials by lienor is not required with respect to balance of agreed price where it is claimed that the construction contract has been completed. 819 Sixth Ave. Corp. v. T. & A. Associates, Inc., 24 A.D.2d 446, 260 N.Y.S.2d 984 (1st Dept. 1965); Application of Pinckney, 13 A.D.2d 806, 216 N.Y.S.2d 19 (2nd Dept. 1961).

The requirement of an itemization will only excused in the limited circumstances where the lienor alleges that it has fully performed a fixed price contract. Itemization will be required if the lienor alleges that it partially performed the contract or if the lienor alleges that it performed extra or additional work to the contract.

Jose A. Aquino is a Special Counsel in the New York Office of Duane Morris LLP, where he is a member of the Construction Group and focuses his practice on commercial litigation with a concentration in construction law, mechanics’ lien law and government procurement law.