Kiritsis & Associates


A legal analysis of Byrd Underground v. Angular from the perspective of Mechanic's Lien laws and regulations in New York State.

Jul 30, 2021

Kiritsis Law Group 212 922 0005

By John Kiritsis, Esq., CPA, MBA, MS, JD, LL.M


Legal frameworks across the U.S. , in one degree or another had to be reset in the heels following the outcome of the Byrd case.


In the Byrd Underground, LLC v Anguar, LLC, two subcontractors filed mechanic’s lien on work done for a construction project conducted by a joint venture. That joint venture also had an obligation to a construction lender. A bankruptcy court stipulated that the lender was the only “Class 1” secured creditor. The lien claimants objected, however, the bankruptcy court held the Dirt Subcontractor and the Site Preparation Subcontractor’s interests in this matter could not be superior to that of the lender’s because the subcontractor’s interests never attached to the subject property at the time of their work.


After the court’s decision in Byrd Underground, LLC v Anguar, LLC, jurisdictions and courts changed their tone, and construction lenders have changed their behavior:


Construction lenders must file notice of their lending (especially once a disbursement of funds from that lender has occurred) as soon as possible and, ideally, prior to the commencement of any work on the subject property, regardless of whether such work is considered preparatory, vertical or horizontal construction work.


In order to properly protect a construction lender’s rights, a lender should never hesitate to file its notice of lending with any transaction where funds are advanced for the purpose of completing construction.


Regardless of whether or not a lender views the activity of a contractor or subcontractor to be general construction work or site preparation work, the majority of jurisdictions have begun to make it clear that, if a construction lender does not timely file or record notice of its lending, then a contractor or subcontractor’s mechanic lien rights and interests may take priority over the lender’s.


After reviewing hundred of New York and New Jersey construction contracts , by far and away, one of the more common mistakes made with regards to preparing a construction contract, is lack of fundamental understanding of the laws surrounding mechanic's liens, as well as, failure to appreciate their possible legal effect on real property and projects.


The views expressed by this author is not legally binding nor reflective of the author per se, the author's firm, the author's employers, the author's employees or any individual and/or organization.


Sources and potentially useful references:

New York State Constitution

U.S. Constitution

New York State Bar Association

New York City Bar Association

New York State Court of Appeals

New York Court of Claims

New York Appellate Division Court

New York Appellate Term Court

New York Supreme Court

New York Real Property Law

Warren's NY Real Property Law

NYS Lien Laws

Section 43 New York State Lien Law



New York General Obligations Law

New York City Department of Finance

Lien Law Section 3

Lien Law Section 5

New York State Appellate Departments

Lien Law Section 2.03

Real Property Law Section 339

Lien Law Section 9 (NYS)

Lien Law Section 10 (NYS)

Section 11 of New York Lien Law

Lien Law Sections 34, 39 & 59

Robert P Frink v Dudley Bierau et al, 212 NYS2d 869

Section 13 of New York Lien Law

Leonard Engineering, Inc. v. Zephyr Petroleum Corporation, 522 NYS 2d 900

Section 22 New York Affidavit Form

Monroe Sav. Bank v. First Nat'l Bank 50 App Div2d 314 -- 4th Dept 1976

Nanuet Nat'l Bank v. Ackerson Terrace, Inc. 417 N.Y. S. 2d 901

HNC Realty Co. V. Golan Heights Developers, 360 NYS2d 954

Aspro Mechanical Contracting, Inc. v. Fleet Bank, N.A. (Circa 2004)

Byrd Underground, LLC v. Anguar, LLC (332 P3d 273 Nev Adv Op 62)

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