Bill Text: NY A00046 | 2023-2024 | General Assembly | Amended
Bill Title: Relates to securing payment of wages for work already performed; creates a lien remedy for all employees; provides grounds for attachment; relates to procedures where employees may hold shareholders of non-publicly traded corporations personally liable for wage theft; relates to rights for victims of wage theft to hold the ten members with the largest ownership interests in a company personally liable for wage theft.
Spectrum: Partisan Bill (Democrat 26-1)
Status: (Introduced) 2024-01-03 - referred to codes [A00046 Detail]
Download: New_York-2023-A00046-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 46--A 2023-2024 Regular Sessions IN ASSEMBLY (Prefiled) January 4, 2023 ___________ Introduced by M. of A. L. ROSENTHAL, AUBRY, TAYLOR, SIMON, SAYEGH, DINOWITZ, REYES, COLTON, MAMDANI, GONZALEZ-ROJAS, RAMOS, MITAYNES, FORREST, OTIS, EPSTEIN, GLICK, FALL, SEPTIMO, GALLAGHER, BURDICK, SANTABARBARA, HEVESI, LUNSFORD, DE LOS SANTOS, SHRESTHA -- read once and referred to the Committee on Judiciary -- reported and referred to the Committee on Codes -- reported and referred to the Committee on Rules -- Rules Committee discharged, bill amended, ordered reprinted as amended and recommitted to the Committee on Rules AN ACT to amend the lien law, in relation to employee liens; to amend the labor law, in relation to employee complaints; to amend the civil practice law and rules, in relation to grounds for attachment; to amend the business corporation law, in relation to streamlining proce- dures where employees may hold shareholders of non-publicly traded corporations personally liable for wage theft; and to amend the limit- ed liability company law, in relation to creating a right for victims of wage theft to hold the ten members with the largest ownership interests in a company personally liable for wage theft The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 2 of the lien law is amended by adding three new 2 subdivisions 21, 22 and 23 to read as follows: 3 21. Employee. The term "employee", when used in this chapter, shall 4 have the same meaning as "employee" pursuant to articles one, six, nine- 5 teen and nineteen-A of the labor law, as applicable, or the Fair Labor 6 Standards Act, 29 U.S.C. § 201 et. seq., as applicable. 7 22. Employer. The term "employer", when used in this chapter, shall 8 have the same meaning as "employer" pursuant to articles one, six, nine- 9 teen and nineteen-A of the labor law, as applicable, or the Fair Labor 10 Standards Act, 29 U.S.C. § 201 et. seq., as applicable, except that the 11 term "employer" shall not include a governmental agency. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD00720-03-3A. 46--A 2 1 23. Wage claim. The term "wage claim", when used in this chapter, 2 means a claim that an employee has suffered a violation of section one 3 hundred seventy, one hundred ninety-three, one hundred ninety-six-d, six 4 hundred fifty-two or six hundred seventy-three of the labor law or the 5 related regulations and wage orders promulgated by the commissioner, a 6 claim for wages due to an employee pursuant to an employment contract 7 that were unpaid in violation of that contract, or a claim that an 8 employee has suffered a violation of 29 U.S.C. § 206 or 207. 9 § 2. Section 3 of the lien law, as amended by chapter 137 of the laws 10 of 1985, is amended to read as follows: 11 § 3. Mechanic's lien and employee's lien on [real] property. 1. 12 Mechanic's lien. A contractor, subcontractor, laborer, materialman, 13 landscape gardener, nurseryman or person or corporation selling fruit or 14 ornamental trees, roses, shrubbery, vines and small fruits, who performs 15 labor or furnishes materials for the improvement of real property with 16 the consent or at the request of the owner thereof, or of his or her 17 agent, contractor or subcontractor, and any trust fund to which benefits 18 and wage supplements are due or payable for the benefit of such labor- 19 ers, shall have a lien for the principal and interest, of the value, or 20 the agreed price, of such labor, including benefits and wage supplements 21 due or payable for the benefit of any laborer, or materials upon the 22 real property improved or to be improved and upon such improvement, from 23 the time of filing a notice of such lien as prescribed in this chapter. 24 Where the contract for an improvement is made with a husband or wife and 25 the property belongs to the other or both, the husband or wife contract- 26 ing shall also be presumed to be the agent of the other, unless such 27 other having knowledge of the improvement shall, within ten days after 28 learning of the contract give the contractor written notice of his or 29 her refusal to consent to the improvement. Within the meaning of the 30 provisions of this chapter, materials actually manufactured for but not 31 delivered to the real property, shall also be deemed to be materials 32 furnished. 33 2. Employee's lien. An employee who has a wage claim as that term is 34 defined in subdivision twenty-three of section two of this chapter or, 35 in the case of an employee whose wage claim originates from or is 36 covered by a collective bargaining agreement, his or her authorized 37 bargaining representative on behalf of such employee, shall have a lien 38 on his or her employer's interest in property for the value of that 39 employee's wage claim arising out of the employment, including liqui- 40 dated damages pursuant to subdivision one-a of section one hundred nine- 41 ty-eight, section six hundred sixty-three or section six hundred eight- 42 y-one of the labor law, or 29 U.S.C. § 216 (b), from the time of filing 43 a notice of such lien as prescribed in this chapter. An employee's lien 44 based on a wage claim may be had against the employer's interest in real 45 property and against the employer's interest in personal property that 46 can be sufficiently described within the meaning of section 9-108 of the 47 uniform commercial code, except that an employee's lien shall not extend 48 to deposit accounts or goods as those terms are defined in section 9-102 49 of the uniform commercial code. The department of labor and the attor- 50 ney general may obtain an employee's lien for the value of wage claims 51 of the employees who are the subject of their investigations, court 52 actions or administrative agency actions. 53 3. As used in this article and unless otherwise specified, a lien 54 shall mean an employee's lien or a mechanic's lien.A. 46--A 3 1 § 3. Subdivisions 1 and 2 of section 4 of the lien law, subdivision 1 2 as amended by chapter 515 of the laws of 1929 and subdivision 2 as added 3 by chapter 704 of the laws of 1985, are amended to read as follows: 4 (1) [Such] A mechanic's or employee's lien and employee's lien against 5 real property shall extend to the owner's right, title or interest in 6 the real property and improvements, existing at the time of filing the 7 notice of lien, or thereafter acquired, except as hereinafter in this 8 article provided. If an owner assigns his or her interest in such real 9 property by a general assignment for the benefit of creditors, within 10 thirty days prior to such filing, the lien shall extend to the interest 11 thus assigned. If any part of the real property subjected to such lien 12 be removed by the owner or by any other person, at any time before the 13 discharge thereof, such removal shall not affect the rights of the 14 lienor, either in respect to the remaining real property, or the part so 15 removed. If labor is performed for, or materials furnished to, a 16 contractor or subcontractor for an improvement, the mechanic's lien 17 shall not be for a sum greater than the sum earned and unpaid on the 18 contract at the time of filing the notice of lien, and any sum subse- 19 quently earned thereon. In no case shall the owner be liable to pay by 20 reason of all mechanic's liens created pursuant to this article a sum 21 greater than the value or agreed price of the labor and materials 22 remaining unpaid, at the time of filing notices of such liens, except as 23 hereinafter provided. 24 (2) [Such] A mechanic's or employee's lien shall not extend to the 25 owner's right, title or interest in real property and improvements, 26 existing at the time of filing the notice of lien if such lien arises 27 from the failure of a lessee of the right to explore, develop or produce 28 natural gas or oil, to pay for, compensate or render value for improve- 29 ments made with the consent or at the request of such lessee by a 30 contractor, subcontractor, materialman, equipment operator or owner, 31 landscaper, nurseryman, or person or corporation who performs labor or 32 furnishes materials for the exploration, development, or production of 33 oil or natural gas or otherwise improves such leased property. Such 34 mechanic's or employee's lien shall extend to the improvements made for 35 the exploration, development and production of oil and natural gas, and 36 the working interest held by a lessee of the right to explore, develop 37 or produce oil and natural gas. 38 § 4. The opening paragraph of section 4-a of the lien law, as amended 39 by chapter 696 of the laws of 1959, is amended to read as follows: 40 The proceeds of any insurance which by the terms of the policy are 41 payable to the owner of real property improved, and actually received or 42 to be received by him because of the destruction or removal by fire or 43 other casualty of an improvement on which lienors have performed labor 44 or services or for which they have furnished materials, or upon which an 45 employee has established an employee's lien, shall after the owner has 46 been reimbursed therefrom for premiums paid by him, if any, for such 47 insurance, be subject to liens provided by this act to the same extent 48 and in the same order of priority as the real property would have been 49 had such improvement not been so destroyed or removed. 50 § 5. Subdivisions 1, 2 and 5 of section 9 of the lien law, as amended 51 by chapter 515 of the laws of 1929, are amended to read as follows: 52 1. The name of the lienor, and either the residence of the lienor or 53 the name and business address of the lienor's attorney, if any; and if 54 the lienor is a partnership or a corporation, the business address of 55 such firm, or corporation, the names of partners and principal place ofA. 46--A 4 1 business, and if a foreign corporation, its principal place of business 2 within the state. 3 2. The name of the owner of the [real] property against whose interest 4 therein a lien is claimed, and the interest of the owner as far as known 5 to the lienor. 6 5. The amount unpaid to the lienor for such labor or materials, or the 7 amount of the wage claim if a wage claim is the basis for establishment 8 of the lien, the items of the wage claim and the value thereof which 9 make up the amount for which the lienor claims a lien. 10 § 6. Subdivision 1 of section 10 of the lien law, as amended by chap- 11 ter 367 of the laws of 2011, is amended to read as follows: 12 1. (a) Notice of mechanic's lien may be filed at any time during the 13 progress of the work and the furnishing of the materials, or, within 14 eight months after the completion of the contract, or the final perform- 15 ance of the work, or the final furnishing of the materials, dating from 16 the last item of work performed or materials furnished; provided, howev- 17 er, that where the improvement is related to real property improved or 18 to be improved with a single family dwelling, the notice of mechanic's 19 lien may be filed at any time during the progress of the work and the 20 furnishing of the materials, or, within four months after the completion 21 of the contract, or the final performance of the work, or the final 22 furnishing of the materials, dating from the last item of work performed 23 or materials furnished; and provided further where the notice of mechan- 24 ic's lien is for retainage, the notice of mechanic's lien may be filed 25 within ninety days after the date the retainage was due to be released; 26 except that in the case of a mechanic's lien by a real estate broker, 27 the notice of mechanic's lien may be filed only after the performance of 28 the brokerage services and execution of lease by both lessor and lessee 29 and only if a copy of the alleged written agreement of employment or 30 compensation is annexed to the notice of lien, provided that where the 31 payment pursuant to the written agreement of employment or compensation 32 is to be made in installments, then a notice of lien may be filed within 33 eight months after the final payment is due, but in no event later than 34 a date five years after the first payment was made. For purposes of this 35 section, the term "single family dwelling" shall not include a dwelling 36 unit which is a part of a subdivision that has been filed with a munici- 37 pality in which the subdivision is located when at the time the lien is 38 filed, such property in the subdivision is owned by the developer for 39 purposes other than his or her personal residence. For purposes of this 40 section, "developer" shall mean and include any private individual, 41 partnership, trust or corporation which improves two or more parcels of 42 real property with single family dwellings pursuant to a common scheme 43 or plan. [The] 44 (b) Notice of employee's lien may be filed at any time not later than 45 three years following the end of the employment giving rise to the wage 46 claim. 47 (c) A notice of lien, other than for a lien on personal property, must 48 be filed in the clerk's office of the county where the property is situ- 49 ated. If such property is situated in two or more counties, the notice 50 of lien shall be filed in the office of the clerk of each of such coun- 51 ties. The county clerk of each county shall provide and keep a book to 52 be called the "lien docket," which shall be suitably ruled in columns 53 headed "owners," "lienors," "lienor's attorney," "property," "amount," 54 "time of filing," "proceedings had," in each of which he or she shall 55 enter the particulars of the notice, properly belonging therein. The 56 date, hour and minute of the filing of each notice of lien shall beA. 46--A 5 1 entered in the proper column. Except where the county clerk maintains a 2 block index, the names of the owners shall be arranged in such book in 3 alphabetical order. The validity of the lien and the right to file a 4 notice thereof shall not be affected by the death of the owner before 5 notice of the lien is filed. A notice of employee's lien on personal 6 property must be filed, together with a financing statement, in the 7 filing office as set forth in section 9-501 of the uniform commercial 8 code. 9 § 7. Section 11 of the lien law, as amended by chapter 147 of the laws 10 of 1996, is amended to read as follows: 11 § 11. Service of copy of notice of lien. 1. Within five days before 12 or thirty days after filing the notice of a mechanic's lien, the lienor 13 shall serve a copy of such notice upon the owner, if a natural person, 14 (a) by delivering the same to him or her personally, or if the owner 15 cannot be found, to his or her agent or attorney, or (b) by leaving it 16 at his or her last known place of residence in the city or town in which 17 the real property or some part thereof is situated, with a person of 18 suitable age and discretion, or (c) by registered or certified mail 19 addressed to his or her last known place of residence, or (d) if such 20 owner has no such residence in such city or town, or cannot be found, 21 and he or she has no agent or attorney, by affixing a copy thereof 22 conspicuously on such property, between the hours of nine o'clock in the 23 forenoon and four o'clock in the afternoon; if the owner be a corpo- 24 ration, said service shall be made (i) by delivering such copy to and 25 leaving the same with the president, vice-president, secretary or clerk 26 to the corporation, the cashier, treasurer or a director or managing 27 agent thereof, personally, within the state, or (ii) if such officer 28 cannot be found within the state by affixing a copy thereof conspicuous- 29 ly on such property between the hours of nine o'clock in the forenoon 30 and four o'clock in the afternoon, or (iii) by registered or certified 31 mail addressed to its last known place of business. Failure to file 32 proof of such a service with the county clerk within thirty-five days 33 after the notice of lien is filed shall terminate the notice as a lien. 34 Until service of the notice has been made, as above provided, an owner, 35 without knowledge of the lien, shall be protected in any payment made in 36 good faith to any contractor or other person claiming a lien. 37 2. Within five days before or thirty days after filing the notice of 38 an employee's lien, the lienor shall serve a copy of such notice upon 39 the employer, if a natural person, (a) by delivering the same to him or 40 her personally, or if the employer cannot be found, to his or her agent 41 or attorney, or (b) by leaving it as his or her last known place of 42 residence or business, with a person of suitable age and discretion, or 43 (c) by registered or certified mail addressed to his or her last known 44 place of residence or business, or (d) if such employer owns real prop- 45 erty, by affixing a copy thereof conspicuously on such property, between 46 the hours of nine o'clock in the forenoon and four o'clock in the after- 47 noon. The lienor also shall, within thirty days after filing the notice 48 of employee's lien, affix a copy thereof conspicuously on the real prop- 49 erty identified in the notice of employee's lien, between the hours of 50 nine o'clock in the forenoon and four o'clock in the afternoon. If the 51 employer be a corporation, said service shall be made (i) by delivering 52 such copy to and leaving the same with the president, vice-president, 53 secretary or clerk to the corporation, the cashier, treasurer or a 54 director or managing agent thereof, personally, within the state, or 55 (ii) if such officer cannot be found within the state by affixing a copy 56 thereof conspicuously on such property between the hours of nine o'clockA. 46--A 6 1 in the forenoon and four o'clock in the afternoon, or (iii) by regis- 2 tered or certified mail addressed to its last known place of business, 3 or (iv) by delivery to the secretary of the department of state in the 4 same manner as required by subparagraph one of paragraph (b) of section 5 three hundred six of the business corporation law. Failure to file 6 proof of such a service with the county clerk within thirty-five days 7 after the notice of lien is filed shall terminate the notice as a lien. 8 Until service of the notice has been made, as above provided, an owner, 9 without knowledge of the lien, shall be protected in any payment made in 10 good faith to any other person claiming a lien. 11 § 8. Section 11-b of the lien law, as amended by chapter 147 of the 12 laws of 1996, is amended to read as follows: 13 § 11-b. Copy of notice of mechanic's lien to a contractor or subcon- 14 tractor. Within five days before or thirty days after filing a notice 15 of mechanic's lien in accordance with section ten of this [chapter] 16 article or the filing of an amendment of notice of mechanic's lien in 17 accordance with section twelve-a of this [chapter] article the lienor 18 shall serve a copy of such notice or amendment by certified mail on the 19 contractor, subcontractor, assignee or legal representative for whom he 20 or she was employed or to whom he or she furnished materials or if the 21 lienor is a contractor or subcontractor to the person, firm or corpo- 22 ration with whom the contract was made. A lienor having a direct 23 contractual relationship with a subcontractor or a sub-subcontractor but 24 not with a contractor shall also serve a copy of such notice or amend- 25 ment by certified mail to the contractor. Failure to file proof of such 26 a service with the county clerk within thirty-five days after the notice 27 of lien is filed shall terminate the notice as a lien. Any lienor, or a 28 person acting on behalf of a lienor, who fails to serve a copy of the 29 notice of mechanic's lien as required by this section shall be liable 30 for reasonable attorney's fees, costs and expenses, as determined by the 31 court, incurred in obtaining such copy. 32 § 9. Subdivision 1 of section 12-a of the lien law, as amended by 33 chapter 1048 of the laws of 1971, is amended to read as follows: 34 1. Within sixty days after the original filing, a lienor may amend his 35 or her lien upon twenty days notice to existing lienors, mortgagees and 36 the owner, provided that no action or proceeding to enforce or cancel 37 the mechanics' lien or employee's lien has been brought in the interim, 38 where the purpose of the amendment is to reduce the amount of the lien, 39 except the question of wilful exaggeration shall survive such amendment. 40 § 10. Subdivision 1 of section 13 of the lien law, as amended by chap- 41 ter 878 of the laws of 1947, is amended to read as follows: 42 (1) [A] An employee's lien, or a lien for materials furnished or labor 43 performed in the improvement of real property, shall have priority over 44 a conveyance, mortgage, judgment or other claim against such property 45 not recorded, docketed or filed at the time of the filing of the notice 46 of such lien, except as hereinafter in this chapter provided; over 47 advances made upon any mortgage or other encumbrance thereon after such 48 filing, except as hereinafter in this article provided; and over the 49 claim of a creditor who has not furnished materials or performed labor 50 upon such property, if such property has been assigned by the owner by a 51 general assignment for the benefit of creditors, within thirty days 52 before the filing of either of such notices; and also over an attachment 53 hereafter issued or a money judgment hereafter recovered upon a claim, 54 which, in whole or in part, was not for materials furnished, labor 55 performed or moneys advanced for the improvement of such real property; 56 and over any claim or lien acquired in any proceedings upon such judg-A. 46--A 7 1 ment. Such liens shall also have priority over advances made upon a 2 contract by an owner for an improvement of real property which contains 3 an option to the contractor, his or her successor or assigns to purchase 4 the property, if such advances were made after the time when the labor 5 began or the first item of material was furnished, as stated in the 6 notice of lien. If several buildings are demolished, erected, altered or 7 repaired, or several pieces or parcels of real property are improved, 8 under one contract, and there are conflicting liens thereon, each lienor 9 shall have priority upon the particular part of the real property or 10 upon the particular building or premises where his or her labor is 11 performed or his or her materials are used. Persons shall have no prior- 12 ity on account of the time of filing their respective notices of liens, 13 but all liens shall be on a parity except as hereinafter in section 14 fifty-six of this chapter provided; and except that in all cases labor- 15 ers for daily or weekly wages with a mechanic's lien, and employees with 16 an employee's lien, shall have preference over all other claimants under 17 this article. 18 § 11. Section 17 of the lien law, as amended by chapter 324 of the 19 laws of 2000, is amended to read as follows: 20 § 17. Duration of lien. 1. (a) No mechanic's lien specified in this 21 article shall be a lien for a longer period than one year after the 22 notice of lien has been filed, unless within that time an action is 23 commenced to foreclose the lien, and a notice of the pendency of such 24 action, whether in a court of record or in a court not of record, is 25 filed with the county clerk of the county in which the notice of lien is 26 filed, containing the names of the parties to the action, the object of 27 the action, a brief description of the real property affected thereby, 28 and the time of filing the notice of lien; or unless an extension to 29 such lien, except for a lien on real property improved or to be improved 30 with a single family dwelling, is filed with the county clerk of the 31 county in which the notice of lien is filed within one year from the 32 filing of the original notice of lien, continuing such lien and such 33 lien shall be redocketed as of the date of filing such extension. Such 34 extension shall contain the names of the lienor and the owner of the 35 real property against whose interest therein such lien is claimed, a 36 brief description of the real property affected by such lien, the amount 37 of such lien, and the date of filing the notice of lien. No lien shall 38 be continued by such extension for more than one year from the filing 39 thereof. In the event an action is not commenced to foreclose the lien 40 within such extended period, such lien shall be extinguished unless an 41 order be granted by a court of record or a judge or justice thereof, 42 continuing such lien, and such lien shall be redocketed as of the date 43 of granting such order and a statement made that such lien is continued 44 by virtue of such order. A lien on real property improved or to be 45 improved with a single family dwelling may only be extended by an order 46 of a court of record, or a judge or justice thereof. No lien shall be 47 continued by court order for more than one year from the granting there- 48 of, but a new order and entry may be made in each of two successive 49 years. If a lienor is made a party defendant in an action to enforce 50 another lien, and the plaintiff or such defendant has filed a notice of 51 the pendency of the action within the time prescribed in this section, 52 the lien of such defendant is thereby continued. Such action shall be 53 deemed an action to enforce the lien of such defendant lienor. The fail- 54 ure to file a notice of pendency of action shall not abate the action as 55 to any person liable for the payment of the debt specified in the notice 56 of lien, and the action may be prosecuted to judgment against suchA. 46--A 8 1 person. The provisions of this section in regard to continuing liens 2 shall apply to liens discharged by deposit or by order on the filing of 3 an undertaking. Where a lien is discharged by deposit or by order, a 4 notice of pendency of action shall not be filed. 5 (b) A lien, the duration of which has been extended by the filing of a 6 notice of the pendency of an action as above provided, shall neverthe- 7 less terminate as a lien after such notice has been canceled as provided 8 in section sixty-five hundred fourteen of the civil practice law and 9 rules or has ceased to be effective as constructive notice as provided 10 in section sixty-five hundred thirteen of the civil practice law and 11 rules. 12 2. (a) No employee's lien on real property shall be a lien for a long- 13 er period than one year after the notice of lien has been filed, unless 14 an extension to such lien is filed with the county clerk of the county 15 in which the notice of lien is filed within one year from the filing of 16 the original notice of lien, continuing such lien and such lien shall be 17 redocketed as of the date of filing such extension. Such extension shall 18 contain the names of the lienor and the owner of the real property 19 against whose interest therein such lien is claimed, a brief description 20 of the property affected by such lien, the amount of such lien, and the 21 date of filing the notice of lien. No lien shall be continued by such 22 extension for more than one year from the filing thereof. In the event 23 an action is not commenced to obtain judgment on the wage claim or to 24 foreclose the lien within such extended period, such lien shall be auto- 25 matically extinguished unless an order be granted by a court of record 26 or a judge or justice thereof, continuing such lien, and such lien shall 27 be redocketed as of the date of granting such order and a statement made 28 that such lien is continued by virtue of such order. 29 (b) No employee's lien on personal property shall be a lien for a 30 longer period than one year after the financing statement has been 31 recorded, unless an extension to such lien, is filed with the filing 32 office in which the financing statement is required to be filed pursuant 33 to section 9-501 of the uniform commercial code within one year from the 34 filing of the original financing statement, continuing such lien. Such 35 extension shall contain the names of the lienor and the owner of the 36 property against whose interest therein such lien is claimed, a brief 37 description of the prior financing statement to be extended, and the 38 date of filing the prior financing statement. No lien shall be contin- 39 ued by such extension for more than one year from the filing thereof. In 40 the event an action is not commenced to obtain judgment on the wage 41 claim or to foreclose the lien within such extended period, such lien 42 shall be automatically extinguished unless an order be granted by a 43 court of record or a judge or justice thereof, continuing such lien, and 44 such lien shall be refiled as of the date of granting such order and a 45 statement made that such lien is continued by virtue of such order. 46 (c) If a lienor is made a party defendant in an action to enforce 47 another lien, and the plaintiff or such defendant has filed a notice of 48 the pendency of the action within the time prescribed in this section, 49 the lien of such defendant is thereby continued. Such action shall be 50 deemed an action to enforce the lien of such defendant lienor. The fail- 51 ure to file a notice of pendency of action shall not abate the action as 52 to any person liable for the payment of the debt specified in the notice 53 of lien, and the action may be prosecuted to judgment against such 54 person. The provisions of this section in regard to continuing liens 55 shall apply to liens discharged by deposit or by order on the filing ofA. 46--A 9 1 an undertaking. Where a lien is discharged by deposit or by order, a 2 notice of pendency of action shall not be filed. 3 (d) Notwithstanding the foregoing, if a lienor commences a foreclosure 4 action or an action to obtain a judgment on the wage claim within one 5 year from the filing of the notice of lien on real property or the 6 recording of the financing statement creating lien on personal property, 7 the lien shall be extended during the pendency of the action and for one 8 hundred twenty days following the entry of final judgment in such 9 action, unless the action results in a final judgment or administrative 10 order in the lienor's favor on the wage claims and the lienor commences 11 a foreclosure action, in which instance the lien shall be valid during 12 the pendency of the foreclosure action, provided, that the lien will be 13 automatically extinguished if, after a dismissal with prejudice of the 14 wage claims on which it is based, the lienor fails to file a notice of 15 appeal within the prescribed period to file a notice of appeal. If a 16 lien is extended due to the pendency of a foreclosure action or an 17 action to obtain a judgment on the wage claim, the lienor shall file a 18 notice of such pendency and extension with the county clerk of the coun- 19 ty in which the notice of lien is filed, containing the names of the 20 parties to the action, the object of the action, a brief description of 21 the property affected thereby, and the time of filing the notice of 22 lien, or in the case of a lien on personal property shall file such 23 notice with the office authorized to accept financing statements pursu- 24 ant to section 9-501 of the uniform commercial code. For purposes of 25 this section, an action to obtain judgment on a wage claim includes an 26 action brought in any court of competent jurisdiction, the submission of 27 a complaint to the department of labor or the submission of a claim to 28 arbitration pursuant to an arbitration agreement. An action also 29 includes an investigation of wage claims by the commissioner of labor or 30 the attorney general of the state of New York, regardless of whether 31 such investigation was initiated by a complaint. 32 (e) A lien, the duration of which has been extended by the filing of a 33 notice of the pendency of an action as above provided, shall neverthe- 34 less terminate as a lien after such notice has been canceled as provided 35 in section sixty-five hundred fourteen of the civil practice law and 36 rules or has ceased to be effective as constructive notice as provided 37 in section sixty-five hundred thirteen of the civil practice law and 38 rules. 39 § 12. Subdivisions 2 and 4 of section 19 of the lien law, subdivision 40 2 as amended by chapter 310 of the laws of 1962, subdivision 4 as added 41 by chapter 582 of the laws of 2002 and paragraph a of subdivision 4 as 42 further amended by section 104 of part A of chapter 62 of the laws of 43 2011, are amended to read as follows: 44 (2) By failure to begin an action to foreclose such lien or to secure 45 an order continuing it, within one year from the time of filing the 46 notice of lien, unless (i) an action be begun within the same period to 47 foreclose a mortgage or another mechanic's lien upon the same property 48 or any part thereof and a notice of pendency of such action is filed 49 according to law, or (ii) an action is commenced to obtain a judgment on 50 a wage claim pursuant to subdivision two of section seventeen of this 51 article, but a lien, the duration of which has been extended by the 52 filing of a notice of the pendency of an action as [herein] provided in 53 this section, shall nevertheless terminate as a lien after such notice 54 has been cancelled or has ceased to be effective as constructive notice. 55 (4) Either before or after the beginning of an action by the employer, 56 owner or contractor executing a bond or undertaking in an amount equalA. 46--A 10 1 to one hundred ten percent of such lien conditioned for the payment of 2 any judgment which may be rendered against the property or employer for 3 the enforcement of the lien: 4 a. The execution of any such bond or undertaking by any fidelity or 5 surety company authorized by the laws of this state to transact busi- 6 ness, shall be sufficient; and where a certificate of qualification has 7 been issued by the superintendent of financial services under the 8 provisions of section one thousand one hundred eleven of the insurance 9 law, and has not been revoked, no justification or notice thereof shall 10 be necessary. Any such company may execute any such bond or undertaking 11 as surety by the hand of its officers, or attorney, duly authorized 12 thereto by resolution of its board of directors, a certified copy of 13 which resolution, under the seal of said company, shall be filed with 14 each bond or undertaking. Any such bond or undertaking shall be filed 15 with the clerk of the county in which the notice of lien is filed, and a 16 copy shall be served upon the adverse party. The undertaking is effec- 17 tive when so served and filed. If a certificate of qualification issued 18 pursuant to subsections (b), (c) and (d) of section one thousand one 19 hundred eleven of the insurance law is not filed with the undertaking, a 20 party may except, to the sufficiency of a surety and by a written notice 21 of exception served upon the adverse party within ten days after 22 receipt, a copy of the undertaking. Exceptions deemed by the court to 23 have been taken unnecessarily, or for vexation or delay, may, upon 24 notice, be set aside, with costs. Where no exception to sureties is 25 taken within ten days or where exceptions taken are set aside, the 26 undertaking shall be allowed. 27 b. In the case of bonds or undertakings not executed pursuant to para- 28 graph a of this subdivision, the employer, owner or contractor shall 29 execute an undertaking with two or more sufficient sureties, who shall 30 be free holders, to the clerk of the county where the premises are situ- 31 ated. The sureties must together justify in at least double the sum 32 named in the undertaking. A copy of the undertaking, with notice that 33 the sureties will justify before the court, or a judge or justice there- 34 of, at the time and place therein mentioned, must be served upon the 35 lienor or his or her attorney, not less than five days before such time. 36 Upon the approval of the undertaking by the court, judge or justice an 37 order shall be made by such court, judge or justice discharging such 38 lien. 39 c. If the lienor cannot be found, or does not appear by attorney, 40 service under this subsection may be made by leaving a copy of such 41 undertaking and notice at the lienor's place of residence, or if a 42 corporation at its principal place of business within the state as stat- 43 ed in the notice of lien, with a person of suitable age and discretion 44 therein, or if the house of his or her abode or its place of business is 45 not stated in said notice of lien and is not known, then in such manner 46 as the court may direct. The premises, if any, described in the notice 47 of lien as the lienor's residence or place of business shall be deemed 48 to be his or her said residence or its place of business for the 49 purposes of said service at the time thereof, unless it is shown affir- 50 matively that the person servicing the papers or directing the service 51 had knowledge to the contrary. Notwithstanding the other provisions of 52 this subdivision relating to service of notice, in any case where the 53 mailing address of the lienor is outside the state such service may be 54 made by registered or certified mail, return receipt requested, to such 55 lienor at the mailing address contained in the notice of lien.A. 46--A 11 1 d. Except as otherwise provided in this subdivision, the provisions of 2 article twenty-five of the civil practice law and rules regulating 3 undertakings is applicable to a bond or undertaking given for the 4 discharge of a lien on account of private improvements or of an employ- 5 ee's lien. 6 § 13. Section 24 of the lien law, as amended by chapter 515 of the 7 laws of 1929, is amended to read as follows: 8 § 24. Enforcement of [mechanic's] lien. (1) Real property. The 9 [mechanics'] liens on real property specified in this article may be 10 enforced against the property specified in the notice of lien and which 11 is subject thereto and against any person liable for the debt upon which 12 the lien is founded, as prescribed in article three of this chapter. 13 (2) Personal property. An employee's lien on personal property speci- 14 fied in this article may immediately be enforced against the property 15 through a foreclosure as prescribed in article nine of the uniform 16 commercial code, or upon judgment obtained by the employee, commissioner 17 of labor or attorney general of the state of New York, may be enforced 18 in any manner available to the judgment creditor pursuant to article 19 nine of the uniform commercial code or other applicable laws. 20 § 14. Section 26 of the lien law, as amended by chapter 373 of the 21 laws of 1977, is amended to read as follows: 22 § 26. Subordination of liens after agreement with owner. In case an 23 owner of real property shall execute to one or more persons, or a corpo- 24 ration, as trustee or trustees, a bond and mortgage or a note and mort- 25 gage affecting such property in whole or in part, or an assignment of 26 the moneys due or to become due under a contract for a building loan in 27 relation to such property, and in case such mortgage, if any, shall be 28 recorded in the office of the register of the county where such real 29 property is situated, or if such county has no register then in the 30 office of the clerk of such county, and in case such assignment, if any, 31 shall be filed in the office of the clerk of the county where such real 32 property is situated; and in case lienors having [mechanics'] liens 33 against said real property, notices of which have been filed up to and 34 not later than fifteen days after the recording of such mortgage or the 35 filing of such assignment, and which liens have not been discharged as 36 in this article provided, shall, to the extent of at least fifty-five 37 per centum of the aggregate amount for which such notices of liens have 38 been so filed, approve such bond and mortgage or such note and mortgage, 39 if any, and such assignment, if any, by an instrument or instruments in 40 writing, duly acknowledged and filed in the office of such county clerk, 41 then all mechanics' liens for labor performed or material furnished 42 prior to the recording of such mortgage or filing of such assignment, 43 whether notices thereof have been theretofore or are thereafter filed 44 and which have not been discharged as in this article provided, shall be 45 subordinate to the lien of such trust bond and mortgage or such trust 46 note and mortgage to the extent of the aggregate amount of all certif- 47 icates of interest therein issued by such trustee or trustees, or their 48 successors, for moneys loaned, materials furnished, labor performed and 49 any other indebtedness incurred after said trust mortgage shall have 50 been recorded, and for expenses in connection with said trust mortgage, 51 and shall also be subordinate to the lien of the bond and mortgage or 52 note and mortgage, given to secure the amount agreed to be advanced 53 under such contract for a building loan to the extent of the amount 54 which shall be advanced by the holder of such bond and mortgage or such 55 note and mortgage to the trustee or trustees, or their successors, under 56 such assignment. The provisions of this section shall apply to all bondsA. 46--A 12 1 and mortgages and notes and mortgages and all assignments of moneys due, 2 or to become due under building loan contracts executed by such owner, 3 in like manner, and recorded or filed, from time to time as hereinbefore 4 provided. In case of an assignment to trustees under the provisions of 5 this section, the trustees and their successors shall be the agents of 6 the assignor to receive and receipt for any and all sums advanced by the 7 holder of the building loan bond and mortgage or the building loan note 8 and mortgage under the building loan contract and such assignment. No 9 lienor shall have any priority over the bond and mortgage or note and 10 mortgage given to secure the money agreed to be advanced under a build- 11 ing loan contract or over the advances made thereunder, by reason of any 12 act preceding the making and approval of such assignment. 13 § 15. Section 38 of the lien law, as amended by chapter 859 of the 14 laws of 1930, is amended to read as follows: 15 § 38. Itemized statement may be required of lienor. A lienor who has 16 filed a notice of mechanic's lien shall, on demand in writing, deliver 17 to the owner or contractor making such demand a statement in writing 18 which shall set forth the items of labor and/or material and the value 19 thereof which make up the amount for which he or she claims a lien, and 20 which shall also set forth the terms of the contract under which such 21 items were furnished. The statement shall be verified by the lienor or 22 his or her agent in the form required for the verification of notices in 23 section nine of this [chapter] article. If the lienor shall fail to 24 comply with such a demand within five days after the same shall have 25 been made by the owner or contractor, or if the lienor delivers an 26 insufficient statement, the person aggrieved may petition the supreme 27 court of this state or any justice thereof, or the county court of the 28 county where the premises are situated, or the county judge of such 29 county for an order directing the lienor within a time specified in the 30 order to deliver to the petitioner the statement required by this 31 section. Two days' notice in writing of such application shall be served 32 upon the lienor. Such service shall be made in the manner provided by 33 law for the personal service of a summons. The court or a justice or 34 judge thereof shall hear the parties and upon being satisfied that the 35 lienor has failed, neglected or refused to comply with the requirements 36 of this section shall have an appropriate order directing such compli- 37 ance. In case the lienor fails to comply with the order so made within 38 the time specified, then upon five days' notice to the lienor, served in 39 the manner provided by law for the personal service of a summons, the 40 court or a justice or judge thereof may make an order cancelling the 41 lien. 42 § 16. Section 39 of the lien law, as added by chapter 859 of the laws 43 of 1930, is amended to read as follows: 44 § 39. Lien wilfully exaggerated is void. In any action or proceeding 45 to enforce a mechanic's lien upon a private or public improvement or an 46 employee's lien, or in which the validity of the lien is an issue, if 47 the court shall find that a lienor has wilfully exaggerated the amount 48 for which he or she claims a lien as stated in his or her notice of 49 lien, [his] such lien shall be declared to be void and no recovery shall 50 be had thereon. No such lienor shall have a right to file any other or 51 further lien for the same claim. A second or subsequent lien filed in 52 contravention of this section may be vacated upon application to the 53 court on two days' notice. 54 § 17. Section 39-a of the lien law, as added by chapter 859 of the 55 laws of 1930, is amended to read as follows:A. 46--A 13 1 § 39-a. Liability of lienor where lien has been declared void on 2 account of wilful exaggeration. Where in any action or proceeding to 3 enforce a mechanic's lien upon a private or public improvement or an 4 employee's lien the court shall have declared said lien to be void on 5 account of wilful exaggeration the person filing such notice of lien 6 shall be liable in damages to the owner or contractor. The damages which 7 said owner or contractor shall be entitled to recover, shall include the 8 amount of any premium for a bond given to obtain the discharge of the 9 lien or the interest on any money deposited for the purpose of discharg- 10 ing the lien, reasonable attorney's fees for services in securing the 11 discharge of the lien, and, in an action or proceeding to enforce a 12 mechanic's lien, an amount equal to the difference by which the amount 13 claimed to be due or to become due as stated in the notice of lien 14 exceeded the amount actually due or to become due thereon. 15 § 18. Section 40 of the lien law, as amended by chapter 515 of the 16 laws of 1929, is amended to read as follows: 17 § 40. Construction of article. This article is to be construed in 18 connection with article two of this chapter, and provides proceedings 19 for the enforcement of employee's liens on real property, as well as 20 liens for labor performed and materials furnished in the improvement of 21 real property, created by virtue of such article. 22 § 19. Section 41 of the lien law, as amended by chapter 807 of the 23 laws of 1952, is amended to read as follows: 24 § 41. Enforcement of mechanic's or employee's lien on real property. A 25 mechanic's lien or employee's lien on real property may be enforced 26 against such property, and against a person liable for the debt upon 27 which the lien is founded, by an action, by the lienor, his or her 28 assignee or legal representative, in the supreme court or in a county 29 court otherwise having jurisdiction, regardless of the amount of such 30 debt, or in a court which has jurisdiction in an action founded on a 31 contract for a sum of money equivalent to the amount of such debt. 32 § 20. Section 43 of the lien law, as amended by chapter 310 of the 33 laws of 1962, is amended to read as follows: 34 § 43. Action in a court of record; consolidation of actions. The 35 provisions of the real property actions and proceedings law relating to 36 actions for the foreclosure of a mortgage upon real property, and the 37 sale and the distribution of the proceeds thereof apply to actions in a 38 court of record, to enforce mechanics' liens and employees' liens on 39 real property, except as otherwise provided in this article. If actions 40 are brought by different lienors in a court of record, the court in 41 which the first action was brought, may, upon its own motion, or upon 42 the application of any party in any of such actions, consolidate all of 43 such actions. 44 § 21. Section 46 of the lien law, as amended by chapter 515 of the 45 laws of 1929, is amended to read as follows: 46 § 46. Action in a court not of record. If an action to enforce a 47 mechanic's lien or employee's lien against real property is brought in a 48 court not of record, it shall be commenced by the personal service upon 49 the owner of a summons and complaint verified in the same manner as a 50 complaint in an action in a court of record. The complaint must set 51 forth substantially the facts contained in the notice of lien, and the 52 substance of the agreement under which the labor was performed or the 53 materials were furnished, or if the lien is based upon a wage claim as 54 defined in section two of this chapter, the basis for such wage claim. 55 The form and contents of the summons shall be the same as provided by 56 law for the commencement of an action upon a contract in such court. TheA. 46--A 14 1 summons must be returnable not less than twelve nor more than twenty 2 days after the date of the summons, or if service is made by publica- 3 tion, after the day of the last publication of the summons. Service 4 must be made at least eight days before the return day. 5 § 22. Section 50 of the lien law, as amended by chapter 515 of the 6 laws of 1929, is amended to read as follows: 7 § 50. Execution. Execution may be issued upon a judgment obtained in 8 an action to enforce a mechanic's lien or an employee's lien against 9 real property in a court not of record, which shall direct the officer 10 to sell the title and interest of the owner in the premises, upon which 11 the lien set forth in the complaint existed at the time of filing the 12 notice of lien. 13 § 23. Section 53 of the lien law, as amended by chapter 515 of the 14 laws of 1929, is amended to read as follows: 15 § 53. Costs and disbursements. If an action is brought to enforce a 16 mechanic's lien or an employee's lien against real property in a court 17 of record, the costs and disbursements shall rest in the discretion of 18 the court, and may be awarded to the prevailing party. The judgment 19 rendered in such an action shall include the amount of such costs and 20 specify to whom and by whom the costs are to be paid. If such action is 21 brought in a court not of record, they shall be the same as allowed in 22 civil actions in such court. The expenses incurred in serving the 23 summons by publication may be added to the amount of costs now allowed 24 in such court. 25 § 24. Section 59 of the lien law, as amended by chapter 515 of the 26 laws of 1929, is amended to read as follows: 27 § 59. Vacating of a [mechanic's] lien; cancellation of bond; return of 28 deposit, by order of court. 1. A mechanic's lien notice of which has 29 been filed on real property or a bond given to discharge the same may be 30 vacated and cancelled or a deposit made to discharge a lien pursuant to 31 section twenty of this chapter may be returned, by an order of a court 32 of record. Before such order shall be granted, a notice shall be served 33 upon the lienor, either personally or by leaving it as his or her last 34 known place of residence, with a person of suitable age, with directions 35 to deliver it to the lienor. Such notice shall require the lienor to 36 commence an action to enforce the lien, within a time specified in the 37 notice, not less than thirty days from the time of service, or show 38 cause at a special term of a court of record, or at a county court, in a 39 county in which the property is situated, at a time and place specified 40 therein, why the notice of lien filed or the bond given should not be 41 vacated and cancelled, or the deposit returned, as the case may be. 42 Proof of such service and that the lienor has not commenced the action 43 to foreclose such lien, as directed in the notice, shall be made by 44 affidavit, at the time of applying for such order. 45 2. An employee's lien notice of which has been filed on real property 46 or a bond given to discharge the same may be vacated and cancelled or a 47 deposit made to discharge a lien pursuant to section twenty of this 48 chapter may be returned, by an order of a court of record. Before such 49 order shall be granted, a notice shall be served upon the lienor, either 50 personally or by leaving it at his or her last known place of residence 51 or attorney's place of business, with a person of suitable age, with 52 directions to deliver it to the lienor. Such notice shall require the 53 lienor to commence an action to enforce the lien, or to commence an 54 action to obtain judgment on the wage claim upon which the lien was 55 established, within a time specified in the notice, not less than thirty 56 days from the time of service, or show cause at a special term of aA. 46--A 15 1 court of record, or at a county court, in a county in which the property 2 is situated, at a time and place specified therein, why the notice of 3 lien filed or the bond given should not be vacated and cancelled, or the 4 deposit returned, as the case may be. Proof of such service and that the 5 lienor has not commenced the action to foreclose such lien or an action 6 to obtain judgment on the wage claim upon which the lien was estab- 7 lished, as directed in the notice, shall be made by affidavit, at the 8 time of applying for such order. 9 § 25. Section 62 of the lien law, as amended by chapter 697 of the 10 laws of 1934, is amended to read as follows: 11 § 62. Bringing in new parties. A lienor who has filed a notice of lien 12 after the commencement of an action in a court of record to foreclose or 13 enforce an employee's lien or a mechanic's lien against real property or 14 a public improvement, may at any time up to and including the day 15 preceding the day on which the trial of such action is commenced, make 16 application upon notice to the plaintiff or his or her attorney in such 17 action, to be made a party therein. Upon good cause shown, the court 18 must order such lienor to be brought in by amendment. If the application 19 is made by any other party in said action to make such lienor or other 20 person a party, the court may in its discretion direct such lienor or 21 other person to be brought in by like amendment. The order to be entered 22 on such application shall provide the time for and manner of serving the 23 pleading of such additional lienor or other person and shall direct that 24 the pleadings, papers and proceedings of the other several parties in 25 such action, shall be deemed amended, so as not to require the making or 26 serving of papers other than said order to effectuate such amendment, 27 and shall further provide that the allegations in the answer of such 28 additional lienor or other person shall, for the purposes of the action, 29 be deemed denied by the other parties therein. The action shall be so 30 conducted by the court as not to cause substantially any delay in the 31 trial thereof. The bringing in of such additional lienor or other 32 person shall be without prejudice to the proceedings had, and if the 33 action be on the calendar of the court, same shall retain its place on 34 such calendar without the necessity of serving a new note of issue and 35 new notices of trial. 36 § 26. Subdivision 3 of section 199-a of the labor law, as amended by 37 chapter 564 of the laws of 2010, is amended to read as follows: 38 3. Each employee and his or her authorized representative shall be 39 notified in writing, of the termination of the commissioner's investi- 40 gation of the employee's complaint and the result of such investigation, 41 of any award and collection of back wages and civil penalties, and of 42 any intent to seek criminal penalties. In the event that criminal penal- 43 ties are sought the employee and his or her authorized representative 44 shall be notified of the outcome of prosecution. 45 § 27. Subdivision 2 of section 663 of the labor law, as amended by 46 chapter 564 of the laws of 2010, is amended to read as follows: 47 2. By commissioner. On behalf of any employee paid less than the wage 48 to which the employee is entitled under the provisions of this article, 49 the commissioner may bring any legal action necessary, including admin- 50 istrative action, to collect such claim, and the employer shall be 51 required to pay the full amount of the underpayment, plus costs, and 52 unless the employer proves a good faith basis to believe that its under- 53 payment was in compliance with the law, an additional amount as liqui- 54 dated damages. Liquidated damages shall be calculated by the commission- 55 er as no more than one hundred percent of the total amount of 56 underpayments found to be due the employee. In any action brought by theA. 46--A 16 1 commissioner in a court of competent jurisdiction, liquidated damages 2 shall be calculated as an amount equal to one hundred percent of under- 3 payments found to be due the employee. Each employee or his or her 4 authorized representative shall be notified in writing of the outcome of 5 any legal action brought on the employee's behalf pursuant to this 6 section. 7 § 28. Subdivision 5 of section 6201 of the civil practice law and 8 rules, as amended by chapter 860 of the laws of 1977 and as renumbered 9 by chapter 618 of the laws of 1992, is amended and a new subdivision 6 10 is added to read as follows: 11 5. the cause of action is based on a judgment, decree or order of a 12 court of the United States or of any other court which is entitled to 13 full faith and credit in this state, or on a judgment which qualifies 14 for recognition under the provisions of article 53[.] of this chapter; 15 or 16 6. the cause of action is based on wage claims. "Wage claims," when 17 used in this chapter, shall include any claims of violations of articles 18 five, six, and nineteen of the labor law, section two hundred fifteen of 19 the labor law, and the related regulations or wage orders promulgated by 20 the commissioner of labor, including but not limited to any claims of 21 unpaid, minimum, overtime, and spread-of-hours pay, unlawfully retained 22 gratuities, unlawful deductions from wages, unpaid commissions, unpaid 23 benefits and wage supplements, and retaliation, and any claims pursuant 24 to 18 U.S.C. § 1595, 29 U.S.C. § 201 et seq., and/or employment contract 25 as well as the concomitant liquidated damages and penalties authorized 26 pursuant to the labor law, the Fair Labor Standards Act, or any employ- 27 ment contract. 28 § 29. Section 6210 of the civil practice law and rules, as added by 29 chapter 860 of the laws of 1977, is amended to read as follows: 30 § 6210. Order of attachment on notice; temporary restraining order; 31 contents. Upon a motion on notice for an order of attachment, the court 32 may, without notice to the defendant, grant a temporary restraining 33 order prohibiting the transfer of assets by a garnishee as provided in 34 subdivision (b) of section 6214. When attachment is sought pursuant to 35 subdivision six of section 6201, and if the employer contests the 36 motion, the court shall hold a hearing within ten days of when the 37 employer's response to plaintiffs' motion for attachment is due. The 38 contents of the order of attachment granted pursuant to this section 39 shall be as provided in subdivision (a) of section 6211. 40 § 30. Subdivision (b) of section 6211 of the civil practice law and 41 rules, as amended by chapter 566 of the laws of 1985, is amended to read 42 as follows: 43 (b) Confirmation of order. Except where an order of attachment is 44 granted on the ground specified in subdivision one or six of section 45 6201, an order of attachment granted without notice shall provide that 46 within a period not to exceed five days after levy, the plaintiff shall 47 move, on such notice as the court shall direct to the defendant, the 48 garnishee, if any, and the sheriff, for an order confirming the order of 49 attachment. Where an order of attachment without notice is granted on 50 the ground specified in subdivision one or six of section 6201, the 51 court shall direct that the statement required by section 6219 be served 52 within five days, that a copy thereof be served upon the plaintiff, and 53 the plaintiff shall move within ten days after levy for an order 54 confirming the order of attachment. If the plaintiff upon such motion 55 shall show that the statement has not been served and that the plaintiff 56 will be unable to satisfy the requirement of subdivision (b) of sectionA. 46--A 17 1 6223 until the statement has been served, the court may grant one exten- 2 sion of the time to move for confirmation for a period not to exceed ten 3 days. If plaintiff fails to make such motion within the required period, 4 the order of attachment and any levy thereunder shall have no further 5 effect and shall be vacated upon motion. Upon the motion to confirm, the 6 provisions of subdivision (b) of section 6223 shall apply. An order of 7 attachment granted without notice may provide that the sheriff refrain 8 from taking any property levied upon into his or her actual custody, 9 pending further order of the court. 10 § 31. Subdivisions (b) and (e) of rule 6212 of the civil practice law 11 and rules, subdivision (b) as separately amended by chapters 15 and 860 12 of the laws of 1977 and subdivision (e) as added by chapter 860 of the 13 laws of 1977, are amended to read as follows: 14 (b) Undertaking. [On] 1. Except where an order of attachment is sought 15 on the ground specified in subdivision six of section 6201, on a motion 16 for an order of attachment, the plaintiff shall give an undertaking, in 17 a total amount fixed by the court, but not less than five hundred 18 dollars, a specified part thereof conditioned that the plaintiff shall 19 pay to the defendant all costs and damages, including reasonable attor- 20 ney's fees, which may be sustained by reason of the attachment if the 21 defendant recovers judgment or if it is finally decided that the plain- 22 tiff was not entitled to an attachment of the defendant's property, and 23 the balance conditioned that the plaintiff shall pay to the sheriff all 24 of his or her allowable fees. 25 2. On a motion for an attachment pursuant to subdivision six of 26 section 6201, the court shall order that the plaintiff give an accessi- 27 ble undertaking of no more than five hundred dollars, or in the alterna- 28 tive, may waive the undertaking altogether. The attorney for the plain- 29 tiff shall not be liable to the sheriff for such fees. The surety on the 30 undertaking shall not be discharged except upon notice to the sheriff. 31 (e) Damages. [The] Except where an order of attachment is sought on 32 the ground specified in subdivision six of section 6201, the plaintiff 33 shall be liable to the defendant for all costs and damages, including 34 reasonable attorney's fees, which may be sustained by reason of the 35 attachment if the defendant recovers judgment, or if it is finally 36 decided that the plaintiff was not entitled to an attachment of the 37 defendant's property. Plaintiff's liability shall not be limited by the 38 amount of the undertaking. 39 § 32. Paragraph (b) of section 624 of the business corporation law, as 40 amended by chapter 449 of the laws of 1997, is amended to read as 41 follows: 42 (b) Any person who shall have been a shareholder of record of a corpo- 43 ration, or who is or shall have been a laborer, servant or employee, 44 upon at least five days' written demand shall have the right to examine 45 in person or by agent or attorney, during usual business hours, its 46 minutes of the proceedings of its shareholders and record of sharehold- 47 ers and to make extracts therefrom for any purpose reasonably related to 48 such person's interest as a shareholder, laborer, servant or employee, 49 provided the purpose reasonably related to a person's interest as a 50 laborer, servant or employee shall be to obtain the names, addresses, 51 and value of shareholders' interests in the corporation. Holders of 52 voting trust certificates representing shares of the corporation shall 53 be regarded as shareholders for the purpose of this section. Any such 54 agent or attorney shall be authorized in a writing that satisfies the 55 requirements of a writing under paragraph (b) of section 609 (Proxies). 56 A corporation requested to provide information pursuant to this para-A. 46--A 18 1 graph shall make available such information in written form and in any 2 other format in which such information is maintained by the corporation 3 and shall not be required to provide such information in any other 4 format. If a request made pursuant to this paragraph includes a request 5 to furnish information regarding beneficial owners, the corporation 6 shall make available such information in its possession regarding bene- 7 ficial owners as is provided to the corporation by a registered broker 8 or dealer or a bank, association or other entity that exercises fiduci- 9 ary powers in connection with the forwarding of information to such 10 owners. The corporation shall not be required to obtain information 11 about beneficial owners not in its possession. 12 § 33. Section 630 of the business corporation law, paragraph (a) as 13 amended by chapter 5 of the laws of 2016, paragraph (c) as amended by 14 chapter 746 of the laws of 1963, is amended to read as follows: 15 § 630. Liability of shareholders for wages due to laborers, servants or 16 employees. 17 (a) The ten largest shareholders, as determined by the fair value of 18 their beneficial interest as of the beginning of the period during which 19 the unpaid services referred to in this section are performed, of every 20 domestic corporation or of any foreign corporation, when the unpaid 21 services were performed in the state, no shares of which are listed on a 22 national securities exchange or regularly quoted in an over-the-counter 23 market by one or more members of a national or an affiliated securities 24 association, shall jointly and severally be personally liable for all 25 debts, wages or salaries due and owing to any of its laborers, servants 26 or employees other than contractors, for services performed by them for 27 such corporation. [Before such laborer, servant or employee shall charge28such shareholder for such services, he shall give notice in writing to29such shareholder that he intends to hold him liable under this section.30Such notice shall be given within one hundred and eighty days after31termination of such services, except that if, within such period, the32laborer, servant or employee demands an examination of the record of33shareholders under paragraph (b) of section 624 (Books and records;34right of inspection, prima facie evidence) of this article, such notice35may be given within sixty days after he has been given the opportunity36to examine the record of shareholders. An action to enforce such liabil-37ity shall be commenced within ninety days after the return of an38execution unsatisfied against the corporation upon a judgment recovered39against it for such services.] The provisions of this paragraph shall 40 not apply to an investment company registered as such under an act of 41 congress entitled "Investment Company Act of 1940." 42 (b) For the purposes of this section, wages or salaries shall mean all 43 compensation and benefits payable by an employer to or for the account 44 of the employee for personal services rendered by such employee includ- 45 ing any concomitant liquidated damages, penalties, interest, attorney's 46 fees or costs. These shall specifically include but not be limited to 47 salaries, overtime, vacation, holiday and severance pay; employer 48 contributions to or payments of insurance or welfare benefits; employer 49 contributions to pension or annuity funds; and any other moneys properly 50 due or payable for services rendered by such employee. 51 (c) A shareholder who has paid more than his or her pro rata share 52 under this section shall be entitled to contribution pro rata from the 53 other shareholders liable under this section with respect to the excess 54 so paid, over and above his or her pro rata share, and may sue them 55 jointly or severally or any number of them to recover the amount due 56 from them. Such recovery may be had in a separate action. As used inA. 46--A 19 1 this paragraph, "pro rata" means in proportion to beneficial share 2 interest. Before a shareholder may claim contribution from other share- 3 holders under this paragraph, he or she shall[, unless they have been4given notice by a laborer, servant or employee under paragraph (a),] 5 give them notice in writing that he or she intends to hold them so 6 liable to him or her. Such notice shall be given by him or her within 7 twenty days after the date that [notice was given to him by] he or she 8 became aware that a laborer, servant or employee may seek to hold him or 9 her liable under paragraph (a). 10 § 34. Subdivision (c) of section 609 of the limited liability company 11 law, as amended by chapter 620 of the laws of 2019, is amended to read 12 as follows: 13 (c) Notwithstanding the provisions of subdivisions (a) and (b) of this 14 section, the ten members with the largest percentage ownership interest, 15 as determined as of the beginning of the period during which the unpaid 16 services referred to in this section are performed, of every domestic 17 limited liability company, or of any foreign limited liability company, 18 when the unpaid services were performed in the state, shall jointly and 19 severally be personally liable for all debts, wages or salaries due and 20 owing to any of its laborers, servants or employees, for services 21 performed by them for such limited liability company. [Before such22laborer, servant or employee shall charge such member for such services,23he or she shall give notice in writing to such member that he or she24intends to hold such member liable under this section. Such notice shall25be given within one hundred eighty days after termination of such26services. An action to enforce such liability shall be commenced within27ninety days after the return of an execution unsatisfied against the28limited liability company upon a judgment recovered against it for such29services.] A member who has paid more than his or her pro rata share 30 under this section shall be entitled to contribution pro rata from the 31 other members liable under this section with respect to the excess so 32 paid, over and above his or her pro rata share, and may sue them jointly 33 or severally or any number of them to recover the amount due from them. 34 Such recovery may be had in a separate action. As used in this subdivi- 35 sion, "pro rata" means in proportion to percentage ownership interest. 36 Before a member may claim contribution from other members under this 37 section, he or she shall give them notice in writing that he or she 38 intends to hold them so liable to him or her. 39 § 35. Section 1102 of the limited liability company law is amended by 40 adding a new subdivision (e) to read as follows: 41 (e) Any person who is or shall have been a laborer, servant or employ- 42 ee of a limited liability company, upon at least five days' written 43 demand shall have the right to examine in person or by agent or attor- 44 ney, during usual business hours, records described in paragraph two of 45 subdivision (a) of this section throughout the period of time during 46 which such laborer, servant or employee provided services to such compa- 47 ny. A company requested to provide information pursuant to this subdivi- 48 sion shall make available such records in written form and in any other 49 format in which such information is maintained by the company and shall 50 not be required to provide such information in any other format. Upon 51 refusal by the company or by an officer or agent of the company to 52 permit an inspection of the records described in this subdivision, the 53 person making the demand for inspection may apply to the supreme court 54 in the judicial district where the office of the company is located, 55 upon such notice as the court may direct, for an order directing the 56 company, its members or managers to show cause why an order should notA. 46--A 20 1 be granted permitting such inspection by the applicant. Upon the return 2 day of the order to show cause, the court shall hear the parties summar- 3 ily, by affidavit or otherwise, and if it appears that the applicant is 4 qualified and entitled to such inspection, the court shall grant an 5 order compelling such inspection and awarding such further relief as to 6 the court may seem just and proper. If the applicant is found to be 7 qualified and entitled to such inspection, the company shall pay all 8 reasonable attorney's fees and costs of said applicant related to the 9 demand for inspection of the records. 10 § 36. This act shall take effect on the thirtieth day after it shall 11 have become a law. The procedures and rights created in this act may be 12 used by employees, laborers or servants in connection with claims for 13 liabilities that arose prior to the effective date of this act.
