Protect Wages With Employee Liens

Section 1. Section 2 of the lien law is amended by adding three new subdivisions 21, 22 and 23 to read as follows:

21. Employee. The term "employee", when used in this chapter, shall have the same meaning as "employee" pursuant to articles one, six, nineteen and nineteen-A of the labor law, as applicable, or the Fair Labor Standards Act, 29 U.S.C. § 201 et. seq., as applicable.

22. Employer. The term "employer", when used in this chapter, shall have the same meaning as "employer" pursuant to articles one, six, nineteen and nineteen-A of the labor law, as applicable, or the Fair Labor Standards Act, 29 U.S.C. § 201 et. seq., as applicable.

23. Wage claim. The term "wage claim", when used in this chapter, means a claim that an employee has suffered a violation of sections one hundred seventy, one hundred ninety-one, one hundred ninety-three, one hundred ninety-six-d, six hundred fifty-two or six hundred seventy-three

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD00117-01-7

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of the labor law or the related regulations and wage orders promulgated by the commissioner, a claim for wages due to an employee pursuant to an employment contract that were unpaid in violation of that contract, or a claim that an employee has suffered a violation of 29 U.S.C. § 206 or 207.

§ 2. Section 3 of the lien law, as amended by chapter 137 of the laws of 1985, is amended to read as follows:

§ 3. Mechanic's lien and employee's lien on [real] property. 1. Mechanic's lien. A contractor, subcontractor, laborer, materialman, landscape gardener, nurseryman or person or corporation selling fruit or ornamental trees, roses, shrubbery, vines and small fruits, who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, or of his agent, contractor or subcontractor, and any trust fund to which benefits and wage supplements are due or payable for the benefit of such laborers, shall have a lien for the principal and interest, of the value, or the agreed price, of such labor, including benefits and wage supplements due or payable for the benefit of any laborer, or materials upon the real property improved or to be improved and upon such improvement, from the time of filing a notice of such lien as prescribed in this chapter. Where the contract for an improvement is made with a husband or wife and the property belongs to the other or both, the husband or wife contracting shall also be presumed to be the agent of the other, unless such other having knowledge of the improvement shall, within ten days after learning of the contract give the contractor written notice of his or her refusal to consent to the improvement. Within the meaning of the provisions of this chapter, materials actually manufactured for but not delivered to the real property, shall also be deemed to be materials furnished.

2. Employee's lien. An employee who has a wage claim as that term is defined in subdivision twenty-three of section two of this chapter shall have a lien on his or her employer's interest in property for the value of the wage claim arising out of the employment, including liquidated damages pursuant to subdivision one-a of section one hundred ninetyeight, section six hundred sixty-three or section six hundred eighty-one of the labor law, or 29 U.S.C. § 216 (b), from the time of filing a notice of such lien as prescribed in this chapter. An employee's lien based on a wage claim may be had against the employer's interest in real property and against the employer's interest in personal property that can be sufficiently described within the meaning of section 9-108 of the uniform commercial code, except that an employee's lien shall not extend to deposit accounts or goods as those terms are defined in section 9-102 of the uniform commercial code. The department of labor and the attorney general may obtain an employee's lien for the value of wage claims of the employees who are the subject of their investigations, court actions or administrative agency actions.

3. As used in this article and unless otherwise specified, a lien shall mean an employee's lien or a mechanic's lien.

§ 3. Subdivisions 1 and 2 of section 4 of the lien law, subdivision 1 as amended by chapter 515 of the laws of 1929 and subdivision 2 as added by chapter 704 of the laws of 1985, are amended to read as follows:

(1) [Such] A mechanic's or employee's lien and employee's lien against real property shall extend to the owner's right, title or interest in the real property and improvements, existing at the time of filing the notice of lien, or thereafter acquired, except as hereinafter in this article provided. If an owner assigns his interest in such real property

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by a general assignment for the benefit of creditors, within thirty days prior to such filing, the lien shall extend to the interest thus assigned. If any part of the real property subjected to such lien be removed by the owner or by any other person, at any time before the discharge thereof, such removal shall not affect the rights of the lienor, either in respect to the remaining real property, or the part so removed. If labor is performed for, or materials furnished to, a contractor or subcontractor for an improvement, the mechanic's lien shall not be for a sum greater than the sum earned and unpaid on the contract at the time of filing the notice of lien, and any sum subsequently earned thereon. In no case shall the owner be liable to pay by reason of all mechanic's liens created pursuant to this article a sum greater than the value or agreed price of the labor and materials remaining unpaid, at the time of filing notices of such liens, except as hereinafter provided.

(2) [Such] A mechanic's or employee's lien shall not extend to the owner's right, title or interest in real property and improvements, existing at the time of filing the notice of lien if such lien arises from the failure of a lessee of the right to explore, develop or produce natural gas or oil, to pay for, compensate or render value for improvements made with the consent or at the request of such lessee by a contractor, subcontractor, materialman, equipment operator or owner, landscaper, nurseryman, or person or corporation who performs labor or furnishes materials for the exploration, development, or production of oil or natural gas or otherwise improves such leased property. Such mechanic's or employee's lien shall extend to the improvements made for the exploration, development and production of oil and natural gas, and the working interest held by a lessee of the right to explore, develop or produce oil and natural gas.

§ 4. The opening paragraph of section 4-a of the lien law, as amended by chapter 696 of the laws of 1959, is amended to read as follows:

The proceeds of any insurance which by the terms of the policy are payable to the owner of real property improved, and actually received or to be received by him because of the destruction or removal by fire or other casualty of an improvement on which lienors have performed labor or services or for which they have furnished materials, or upon which an employee has established an employee's lien, shall after the owner has been reimbursed therefrom for premiums paid by him, if any, for such insurance, be subject to liens provided by this act to the same extent and in the same order of priority as the real property would have been had such improvement not been so destroyed or removed.

§ 5. Subdivisions 1, 2 and 5 of section 9 of the lien law, as amended by chapter 515 of the laws of 1929, are amended to read as follows:

1. The name of the lienor, and either the residence of the lienor or the name and business address of the lienor's attorney, if any; and if the lienor is a partnership or a corporation, the business address of such firm, or corporation, the names of partners and principal place of business, and if a foreign corporation, its principal place of business within the state.

2. The name of the owner of the [real] property against whose interest therein a lien is claimed, and the interest of the owner as far as known to the lienor.

5. The amount unpaid to the lienor for such labor or materials, or the amount of the wage claim if a wage claim is the basis for establishment of the lien, the items of the wage claim and the value thereof which make up the amount for which the lienor claims a lien.

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§ 6. Subdivision 1 of section 10 of the lien law, as amended by chapter 367 of the laws of 2011, is amended to read as follows:

1. (a) Notice of mechanic's lien may be filed at any time during the progress of the work and the furnishing of the materials, or, within eight months after the completion of the contract, or the final performance of the work, or the final furnishing of the materials, dating from the last item of work performed or materials furnished; provided, however, that where the improvement is related to real property improved or to be improved with a single family dwelling, the notice of mechanic's lien may be filed at any time during the progress of the work and the furnishing of the materials, or, within four months after the completion of the contract, or the final performance of the work, or the final furnishing of the materials, dating from the last item of work performed or materials furnished; and provided further where the notice of mechanic's lien is for retainage, the notice of mechanic's lien may be filed within ninety days after the date the retainage was due to be released; except that in the case of a mechanic's lien by a real estate broker, the notice of mechanic's lien may be filed only after the performance of the brokerage services and execution of lease by both lessor and lessee and only if a copy of the alleged written agreement of employment or compensation is annexed to the notice of lien, provided that where the payment pursuant to the written agreement of employment or compensation is to be made in installments, then a notice of lien may be filed within eight months after the final payment is due, but in no event later than a date five years after the first payment was made. For purposes of this section, the term "single family dwelling" shall not include a dwelling unit which is a part of a subdivision that has been filed with a municipality in which the subdivision is located when at the time the lien is filed, such property in the subdivision is owned by the developer for purposes other than his personal residence. For purposes of this section, "developer" shall mean and include any private individual, partnership, trust or corporation which improves two or more parcels of real property with single family dwellings pursuant to a common scheme or plan. [The]

(b) Notice of employee's lien may be filed at any time not later than three years following the end of the employment giving rise to the wage claim.

(c) A notice of lien, other than for a lien on personal property, must be filed in the clerk's office of the county where the property is situated. If such property is situated in two or more counties, the notice of lien shall be filed in the office of the clerk of each of such counties. The county clerk of each county shall provide and keep a book to be called the "lien docket," which shall be suitably ruled in columns headed "owners," "lienors," "lienor's attorney," "property," "amount," "time of filing," "proceedings had," in each of which he shall enter the particulars of the notice, properly belonging therein. The date, hour and minute of the filing of each notice of lien shall be entered in the proper column. Except where the county clerk maintains a block index, the names of the owners shall be arranged in such book in alphabetical order. The validity of the lien and the right to file a notice thereof shall not be affected by the death of the owner before notice of the lien is filed. A notice of employee's lien on personal property must be filed, together with a financing statement, in the filing office as set forth in section 9-501 of the uniform commercial code.

§ 7. Section 11 of the lien law, as amended by chapter 147 of the laws of 1996, is amended to read as follows:

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