Background

In April 2021, Hewitt Builders and Renovation entered into a contract with Tectonic Builders for Hewitt to perform drywall and carpentry work at a property owned by Farmingville Associates. Hewitt completed its work in October of that year but was still owed more than $100,000.

To secure its right to payment of that sum, Hewitt filed a mechanic’s lien on Nov. 29, 2021. When payment was still not forthcoming, Hewitt filed a lien foreclosure lawsuit in March 2022 against both Tectonic and the owner, Farmingville.

Hewitt, however, did not file a Notice of Pendency at the time it commenced the lawsuit.

A Notice of Pendency is essentially a “red flag” that a plaintiff files with the County Clerk at the time a lawsuit is commenced (or shortly thereafter) that will stand out to anyone searching the title to the property, notifying them that a lawsuit affecting the property has been filed and that a prospective buyer or lender may need to be aware of it. A Notice of Pendency extends a mechanic’s lien for three years, rather than the one year otherwise available through a traditional extension. A Notice of Pendency, however, is available only in the context of a lien foreclosure action.

In December 2022, the owner obtained a mechanic’s lien discharge bond.

In September 2023, the owner moved to dismiss the complaint insofar as asserted against it, arguing that because the mechanic’s lien had not been extended by the filing of a Notice of Pendency (or otherwise extended by any other filing), the lien expired by operation of law one year after its filing and could no longer be foreclosed upon.

In opposition, Hewitt argued that because a bond had been issued to serve as substitute security for the property, the filing of a Notice of Pendency was no longer necessary.

Decision

The trial court granted the owner’s motion, noting that because the mechanic’s lien had already expired by the time the bond was procured, even if the bond had been filed with the County Clerk (which it had not), it was insufficient to salvage a cause of action against the owner (or the surety). Accordingly, the court dismissed the claim.

Hewitt appealed. However, it did not fare any better, as the appellate court affirmed the dismissal. In doing so, the court held that the bond, procured after the expiration of the lien, could not serve to extend the lien. The appellate court also declined to salvage any unjust enrichment claim against the owner, finding that Hewitt’s relationship was with Tectonic and not the owner.

Comment

In both the private and public sectors, mechanic’s liens are a powerful tool to help unpaid contractors get paid, but only if all required formalities are followed. These formalities are necessary because the mechanic’s lien is a statutory compromise that gives a contractor the right to sue a party with whom it has no contractual relationship and, in most circumstances, provides security for the underlying debt.

Here, the contractor failed to comply with all of the required formalities needed to keep its lien in place—the filing of the Notice of Pendency. Accordingly, once the lien expired, so did the contractor’s right to maintain the lien foreclosure action.

Mechanic’s liens must be prepared, filed, served (with proof thereof), and perfected correctly. Therefore, should you have any questions as to how best to protect your rights to recover on a mechanic’s lien, you should consult experienced construction counsel.

About the authors: Thomas H. Welby, an attorney and licensed professional engineer, is General Counsel to the CIC and the BCA, and is the Founder of, and Senior Counsel to the law firm of Welby, Brady & Greenblatt, LLP, with offices located throughout the Tri-State Region. Gregory J. Spaun, General Counsel to the Queens and Bronx Building Association, and an attorney and a partner with the firm, co-authors this series.

Published: July 16, 2026.