The Second Department determined that the contractor, Matell, who was hired by the tenant to construct a supermarket, could not impose a mechanic’s lien upon the property owner (Fleetwood Park) based on the tenant’s failure to pay. In affirming the dismissal of two affirmative defenses, the court explained that the lien was timely filed and privity was not required for a valid mechanic’s lien. On the “affirmative consent of the property owner requirement,” the court wrote:
“A contractor who performs work for, or provides equipment to, a tenant may nonetheless impose a mechanic’s lien against the premises where the owner of the premises affirmatively gave consent for the work or equipment directly to the contractor, but not where the owner has merely approved or acquiesced in the undertaking of such work or the provision of such equipment” … . “To sustain the lien, the owner must either be an affirmative factor in procuring the improvement to be made, or having possession and control of the premises assent to the improvement in the expectation that he [or she] will reap the benefit of it'” … .
Here, while Matell presented evidence showing that Fleetwood Park had knowledge of, and acquiesced in, the work performed to convert the leased property into a supermarket for the tenant’s use, Matell failed to present any evidence showing that Fleetwood Park conveyed any affirmative consent directly to Matell for the work … . Therefore, Matell failed to make a prima facie showing that Fleetwood Park affirmatively consented to the subject work. Matell Contr Co v Fleetwood Park Dev LLC, 2013 NY Slip Op 07456, 2nd Dept 11-13-13