2023 New York Laws › LIE - Lien › Article 2 - Mechanics' Liens › 21 - Discharge of Lien for Public Improvement.

§  21.  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.