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HERE THE MARINA OWNER SERVED THE BOAT OWNER WITH A NOTICE OF SALE (FOR FAILURE TO PAY STORAGE FEES) BY MAIL; THE LIEN LAW REQUIRES AN INITIAL ATTEMPT AT PERSONAL SERVICE OF THE NOTICE OF SALE BEFORE RESORTING TO SERVICE BY MAIL; THE FAILURE TO MAKE AN ATTEMPT AT PERSONAL SERVICE BEFORE SELLING THE BOAT VIOLATED THE LIEN LAW; THE SALE OF THE BOAT THEREFORE CONSTITUTED CONVERSION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant did not properly serve the plaintiff pursuant to the Lien Law. Defendant, a marina-owner, sought to satisfy a garagekeeper’s lien by selling plaintiff’s boat because plaintiff had stopped making payments for storage of the boat. Defendant did not attempt personal service, as required by the Lien Law, and instead served plaintiff by mail. Plaintiff was entitled to summary judgment on the conversion cause of action:

A lienor may satisfy a lien against personal property by selling such property … . However, before such sale is held, the lienor “must serve a notice of sale, by personal service, within the county where [the] lien arose, unless the person to be served cannot with due diligence be found within such county” (… see Lien Law § 201). After exercising due diligence in attempting personal service of the notice of sale, a lienor may then resort to service “by certified mail, return receipt requested, and by first-class mail” to the owner’s last known place of residence … . “[I]nasmuch as a garagekeeper’s lien is a statutory creation in derogation of common law,” the failure to comply with the statutory service requirements “renders service defective” … . The unauthorized disposition of property by a lienor to a third party without proper notice to the owner entitles the owner to damages for conversion … . …

… Since the defendant admitted that it had not exercised due diligence in attempting to serve the notice of sale by personal service before resorting to the statutory alternative of service by mail, the defendant failed to raise a triable issue of fact as to whether it properly served the plaintiff with the notice of sale before disposing of the plaintiff’s boat … . Slattery v Strong’s Mar., LLC, 2024 NY Slip Op 04219, Second Dept 8-14-24

Practice Point: The Lien Law requires a garagekeeper to attempt to personally serve a notice of sale before resorting to service by mail. The failure to attempt personal service of the notice of sale essentially nullifies the notice. A subsequent sale of the property to satisfy the garagekeeper’s lien constitutes conversion.​

 

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THE USUAL PROHIBITIONS RE: VACATING ORDERS ISSUED OPON A PARTY’S DEFAULT... FAILURE TO COMPLY WITH THE NOTICE OF DEFAULT REQUIREMENTS IN THE BUILDING-CONSTRUCTION...