Turning Lien Claim into Criminal Claim?

A New York case that started with a contractor’s lien claim showcases a poor intersection between the legal and political system. But a County Court judge saw through the machinations of a district attorney and dismissed criminal charges that had been filed against the contractor.

The contractor performed construction and renovation work for a property owner, and by the end of the project had submitted 15 change orders (4 deductive and 11 additive) with a net increase of 4% to the overall contract. When not fully paid, the contractor filed a mechanic’s lien.

The local District Attorney, at the request of the property owner, conducted an investigation. The DA then charged the contractor with grand larceny and falsification of business records in conjunction with the lien claim. The court decision indicates that the contractor justified and supported the changes and total amounts claimed.

The court’s decision, available here, demonstrated that judges can see through efforts to use the legal system for improper purposes. The judge noted, based on publicly available records, that the property owner –

  • Was a member of the Republican Committee that funded the DA’s political campaign.
  • Was personally involved in the nomination petitions for the DA.
  • Served on the County Legislature, and further on the committee that oversaw the budget for the DA’s office.

When the judge initially sought public records (without identifying any parties or the purpose of the request), the DA responded by demanding that the judge recuse herself. But the judge had the final word:

“It is clear that District Attorney Mills has, inappropriately, controlled and supervised the prosecution of this matter from the initial conversation she had with the complainant up to and including the preparation and submission of the latest motion in this matter and her oral argument on that motion.

“The four (4) year investigation and prosecution of this matter was an inappropriate and wasteful expenditure of public resources and time of personnel by staff within the District Attorney's office and within the involved police agencies.

“A dismissal in the furtherance of justice would help restore confidence in the criminal justice system of this county to show that a system of justice giving preferential treatment to the privileged and politically connected is not acceptable.”

An unseemly start, but justice was served in the end. The case is People v. Gerstenschlager, 2019 N.Y. Misc. LEXIS 6729, 2019 NY Slip Op 52089(U), Docket 19-1673, Jefferson County, Dec. 20, 2019.

About Stan Martin

Stanley A. Martin's Profile Image
Stan Martin holds a law degree and an undergraduate degree in architecture. He has been involved with the construction industry for more than 45 years, working in construction prior to law school and beginning his construction law practice. Over the course of his career, he has served on boards and committees for organizations including the Associated General Contractors of Massachusetts, the Boston Society of Architects, and the Massachusetts Building Congress.

Read More About Stan