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This entry was published on 2014-09-22
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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law, and has not been revoked, no justification or notice thereof shall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.