Mahan Construction v. 373 Wythe Realty 2011 WL 346690 (Sup Ct., Feb 4, 2011) Wythe filed a motion to discharge Mahan’s mechanic’s lien on several grounds, all but one of which were summarily denied. The reason for discharge accepted by the court for discharge of the lien was Mahan’s failure to comply with the service of notice requirements in Lien Law Section 11. Actually the court found that Mahan had failed to comply with Section 11 in two respects: Initially the court found that Mahan’s attempt to serve the notice of lien by attaching a copy of the notice at a conspicuous place at the job site was defective. The court noted that Section 11 (ii) permits notice by posting only “if such officer [of the owner] cannot be found within the state.” “As Mahan has not provided any evidence or even alleged that service of the notice of lien was attempted by any method other than by posting the notice at the property, the service method did not comply with Lien Law Sec. 11.” Thus the court held that an unsuccessful attempt to effect service in the state upon an officer of the owner is a prerequisite for posting of a notice of lien to be valid substituted service. The lien also ran afoul of the last sentence in Lien Law Sec. 11 which provides: “Failure to file proof of such service with the county clerk within thirty-five days after the notice of lien is filed shall terminate the notice as a lien.” Mahan tried to argue that the owner had waived the defense of failure to file proof of service because it had not asserted this as an affirmative defense in its answer. The court disagreed stating;”… the statute is clear in that the failure to file proof of service on the notice in accordance with Lien Law Sec 11 ‘shall terminate the notice as a lien’ and ‘[t]he word ‘shall’ is peremptory and takes all discretion away from this Court’.” Note: This case is but another example of the extreme care that must be taken when filing mechanics liens to make sure that the Lien Law is complied with exactly. “Close enough” (i.e. legal speak for substantial compliance) may count in horseshoes and hand grenades, but not when filing a mechanics lien.