What recourse do we have for a contractor charging us more after we have paid what we owed to him?
Full Question:
Answer:
I am prohibited from giving legal advice. Our service provides information of a general legal nature. A lien claimed under New York law may be discharged by the issuing of a certificate by the lien holder, filed in the court where the lien notice was filed, acknowledging the satisfaction and release of said lien. Otherwise, the lien will dissolve automatically within one year of filing if no legal action is taken to foreclose on the lien.
In New York, if a notice of lien is filed, the property owner can request an itemized statement from the person claiming the lien. The statement must set out the items of labor and/or material and their value which make up the amount for which he claims a lien, and must also set forth the terms of the contract under which such items were furnished.
In an action to enforce a lien, the property owner may appear and set forth any evidence in his/her defense against the lien. If the lien is proven to be intentionally exaggerated, the lien will be declared void and the plaintiff may be required to pay the amount of the exaggeration as a penalty.
The following are NY statutes:
§ 39. Lien wilfully exaggerated is void. In any action or proceeding
to enforce a mechanic's lien upon a private or public improvement or in
which the validity of the lien is an issue, if the court shall find that
a lienor has wilfully exaggerated the amount for which he claims a lien
as stated in his notice of lien, his lien shall be declared to be void
and no recovery shall be had thereon. No such lienor shall have a right
to file any other or further lien for the same claim. A second or
subsequent lien filed in contravention of this section may be vacated
upon application to the court on two days' notice.
§ 39-a. Liability of lienor where lien has been declared void on
account of wilful exaggeration. Where in any action or proceeding to
enforce a mechanic's lien upon a private or public improvement the court
shall have declared said lien to be void on account of wilful
exaggeration the person filing such notice of lien shall be liable in
damages to the owner or contractor. The damages which said owner or
contractor shall be entitled to recover, shall include the amount of any
premium for a bond given to obtain the discharge of the lien or the
interest on any money deposited for the purpose of discharging the lien,
reasonable attorney's fees for services in securing the discharge of the
lien, and an amount equal to the difference by which the amount claimed
to be due or to become due as stated in the notice of lien exceeded the
amount actually due or to become due thereon.
§ 38. Itemized statement may be required of lienor. A lienor who has
filed a notice of 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 claims a lien, and which shall also set
forth the terms of the contract under which such items were furnished.
The statement shall be verified by the lienor or his agent in the form
required for the verification of notices in section nine of this
chapter. If the lienor shall fail to comply with such a demand within
five days after the same shall have been made by the owner or
contractor, or if the lienor delivers an insufficient statement, the
person aggrieved may petition the supreme court of this state or any
justice thereof, or the county court of the county where the premises
are situated, or the county judge of such county for an order directing
the lienor within a time specified in the order to deliver to the
petitioner the statement required by this section. Two days' notice in
writing of such application shall be served upon the lienor. Such
service shall be made in the manner provided by law for the personal
service of a summons. The court or a justice or judge thereof shall hear
the parties and upon being satisfied that the lienor has failed,
neglected or refused to comply with the requirements of this section
shall have an appropriate order directing such compliance. In case the
lienor fails to comply with the order so made within the time specified,
then upon five days' notice to the lienor, served in the manner provided
by law for the personal service of a summons, the court or a justice or
judge thereof may make an order cancelling the lien.
§ 48. Proceedings on return of summons; answer; judgment by default.
At the time and place specified in the summons for the return thereof,
in a court not of record, issue must be joined, if both parties appear,
by the defendant filing with the justice a verified answer, containing a
general denial of each allegation of the complaint, or a specific denial
of one or more of the material allegations thereof; or any other matter
constituting a defense to the lien or to the claim upon which it is
founded. If the defendant fail to appear on the return-day, on proof by
affidavit of the service of the summons and complaint, judgment may be
rendered for the amount claimed, with costs.
Please see the information at the following links:
http://lawdigest.uslegal.com/contractors/construction-liens/4086/
http://definitions.uslegal.com/m/mechanics-lien/
http://definitions.uslegal.com/o/oral-contract/
http://lawdigest.uslegal.com/consumer-issues/contracts/
