Article 3-A Changes the Math The requisition that cleared this morning is a statutory trust asset. Have the file read before the next debit. Call Now - Free Consultation

NYC Construction Subcontractors: 8 Restructuring Rules Your MCA Funder Did Not Price

Bottom line: A New York City subcontractor carrying merchant cash advances is holding money the funder never underwrote correctly, because N.Y. Lien Law article 3-A turns construction payments into statutory trust assets before they are yours to spend, and eight rules follow from that: (1) §§70 and 71 decide what is trust money and what may be paid out of it, (2) Gen. Bus. Law §756-a sets a payment calendar no daily remittance can match, (3) the §75 books decide who gets believed, (4) the funder’s UCC-1 collides with the trust and with §73, (5) §72(2) bars a C.P.L.R. §5222 restraining notice against trust assets, (6) §79-a reaches officers by name, (7) §756-c retainage and four lien clocks control your cash, and (8) your surety reads every bit of it. Call (888) 559-0156.

The Statute That Decides Whose Money Cleared This Morning

A New York City subcontractor in trouble tends to arrive with the same balance sheet, and you probably recognize most of it: several hundred thousand dollars of billed and unpaid requisitions, a retainage column that has been sitting untouched since the second floor was poured, a change order log nobody at the construction manager’s office will sign, and three or four merchant cash advances pulling a fixed amount out of your operating account before anyone opens the mail. Your work is real and your backlog is real. The money is simply stuck somewhere between an owner’s construction lender and a general contractor’s accounts payable clerk. What makes your file different from a restaurant file or a trucking file is not the size of the hole. It is that a large share of the money moving through your account was never legally yours to spend.

N.Y. Lien Law article 3-A, which runs from §70 through §79-a, converts construction payments into statutory trust assets held for the people who put labor and material into the job. The trust arises automatically, with nobody signing a trust instrument, and it attaches to your funds exactly the way it attaches to an owner’s or a general contractor’s. So the deposit your funder is about to debit is frequently money the statute has already committed to your foreman, your steel supplier, your benefit funds and the taxing authorities. Paying whoever is shouting loudest carries a consequence in this industry that it does not carry in most others.

Two things about the statute get oversold, so take them off your table first. Article 3-A is not a defense to paying what you actually owe, and it is not a settled answer to a funder’s financing statement. We looked for a reported New York appellate decision holding that a merchant cash advance funder sweeping a subcontractor’s construction receivables had diverted article 3-A trust assets, and we did not find one, so do not walk into a negotiation treating the point as decided. What the article does change is who is personally exposed, what order your money has to move in, and what your workout can safely include. The eight rules below run from the money to the paper, opening with what the trust covers and closing with what your surety does about all of it.

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1. The Draw Landed in Your Account as Somebody Else’s Money

N.Y. Lien Law §70(1) provides that funds you receive as a subcontractor for or in connection with an improvement of real property are assets of a trust, and the definition reaches past the cash in your account, because it also captures any right of action for those funds. The Court of Appeals read that language in Canron Corp. v. City of New York, 89 N.Y.2d 147 (1996), to cover a contingent and not yet matured right to be paid for work in progress. Section 70(3) starts the trust when any asset of it comes into existence and keeps it running until every trust claim is paid or discharged. Section 70(4) makes the trust arise whether or not anybody signed a covenant saying so, and §70(7) identifies your trust assets as the funds received under the subcontract plus related assignments of payment and insurance proceeds.

Section 71(2) decides what you may legally do with that money, and it reads as a closed list rather than as guidance. A contractor or subcontractor trustee holds the assets for claims of subcontractors, architects, engineers, surveyors, laborers and materialmen; for taxes based on payrolls and on the purchase of materials and equipment for the improvement; for employment-related taxes, unemployment insurance and other contributions; for benefits and wage supplements, or the amounts necessary to provide them under an employment agreement; for premiums on surety bonds and insurance accruing during the improvement; and for amounts owed to an owner under §71-a. A remittance to a receivables funder appears nowhere on that list. Neither does rent, unrelated overhead, or the distribution you were planning to take.

From the funder’s side of the table none of this is visible, and that is the whole problem. A receivables desk underwrites bank deposits, average daily balances and the number of negative days over the last four months, and it prices your file off a merchant statement rather than off a job cost ledger. Nothing in that process distinguishes a $180,000 requisition already committed to a curtain wall supplier from $180,000 of restaurant covers. The funder is buying a percentage of your deposits, the statute is looking at the same dollars and calling them a trust corpus, and the two views of one bank line never meet until a supplier goes unpaid and somebody reads §71 for the first time.

The beneficiary definitions matter as much as the asset definitions when you are working out who can come after you. Section 71(4) makes every person holding a claim for one of the listed payments a beneficiary of your trust whether or not that person ever filed a mechanic’s lien, and whether or not the claim has been reduced to judgment. Section 71(5) dates the claim from the making of the contract or from the transaction that produced it. Section 71(3) then excludes claims acquired by assignment from the definition of trust claims, which is worth knowing when a funder or a collection buyer tries to describe itself as standing in your supplier’s shoes.

What Section 71(2) Actually Permits: The permitted expenditures out of a contractor or subcontractor trust are: claims of subcontractors, architects, engineers, surveyors, laborers and materialmen; payroll and materials taxes; unemployment insurance and other employment contributions; benefits and wage supplements; premiums on surety bonds and insurance accruing during the improvement; and amounts owed an owner under §71-a. An advance remittance is not on the list. (N.Y. Lien Law §71)

2. Twelve Business Days, Then Thirty, Then Seven

The gap that put you into advance debt is written into the payment statute itself. Gen. Bus. Law §756-a gives an owner twelve business days to approve or disapprove an invoice, then thirty days after approval to pay the contractor, and it gives your contractor seven days after receipt of good funds to pay you, provided every contractually required document and waiver has been delivered. Article 35-E reaches construction contracts with an aggregate cost of $150,000 or more under §756, and it excludes public work and several categories of residential project. So the first question on your file is whether the job is inside the statute at all. Where it is, that sequence can lawfully consume most of two months on a requisition nobody is even disputing.

Your municipal jobs run on a different calendar. Gen. Mun. Law §106-b requires payment within thirty days, excluding legal holidays, of receipt of an approvable requisition, stretched to forty-five days where an elected official must sign off, with interest computed at the overpayment rate the commissioner of taxation and finance sets under Tax Law §1096(e). The same section lets a public owner retain not more than five percent of each progress payment, with up to ten percent available where the contractor was not required to furnish both performance and labor and material bonds. None of those timelines is unreasonable on its own terms. They are simply incompatible with a repayment obligation that measures itself in mornings.

Put the two calendars side by side and your failure is arithmetic rather than mismanagement. Remitting $1,150 every business day across three positions sends roughly $24,150 out of your operating account in a twenty-one business day month, and it sends the same amount in a month where one requisition was kicked back over a missing lien waiver and nothing came in at all. The advance was underwritten against a deposit average that assumed the requisition landed. When it does not land, the debit does not pause, your reconciliation request goes into a queue, and the fourth position gets taken to cover the payroll the first three consumed. What a funder does once that breaks is covered on our page about what happens when a construction contractor defaults on an advance.

Two provisions in the same article give you something to do rather than something to complain about. Gen. Bus. Law §756-b sets interest on a late payment at one percent per month or fraction of a month on the unpaid balance, or a higher rate if your construction contract provides one. The same section lets you suspend performance on ten calendar days’ written notice after a failure to pay or approve within the statutory limits, and it routes an unresolved complaint to expedited arbitration before the American Arbitration Association, referable not less than fifteen days after receipt of third party verification that the complaint was delivered. A subcontractor who has served that notice and started the interest clock is a materially different counterparty from one who has been calling the project manager for six weeks.

The Payment Calendar in Days: Private work of $150,000 or more under Gen. Bus. Law article 35-E: 12 business days for the owner to approve or disapprove, 30 days after approval to pay the contractor, 7 days after receipt of good funds to pay the subcontractor. Municipal work under Gen. Mun. Law §106-b: 30 days excluding legal holidays, or 45 where an elected official must approve. Late payment carries 1% per month under §756-b.

3. The Ledger the Statute Expects You to Already Have

Lien Law §75 requires you as trustee to keep books or records with five specific categories of entry, and most subcontractors meet the section for the first time when a supplier’s lawyer cites it. The required entries are trust assets receivable, with names, addresses, identification of the payment, amounts due and the dates they became payable; trust accounts payable, with the same detail for each creditor; trust funds received, identifying the payer, the date each payment or remittance came in, the amount and the depositary; trust payments made, identifying the payee, the date and place, the amount, the method and a statement of the nature of the trust claim being satisfied; and transfers made for advances, identifying the transferee, the date, the asset, the amount and the dates of the advances.

The penalty for not keeping them is not a fine. Section 75 provides that failure to keep the required books or records is presumptive evidence that the trustee applied or consented to the application of trust funds to a non-trust purpose, and §79-a(3) repeats the presumption on the criminal side. Run one commingled operating account, pay whichever creditor is loudest, and keep a job cost file in a spreadsheet last reconciled in March, and you have handed the other side a presumption it would otherwise have had to prove. That is the cheapest thing to fix on most of these files and the one left latest.

Section 76 turns your ledger into a live problem. Any beneficiary holding a trust claim may serve a written demand, personally or by registered or certified mail, once the claim has been payable for thirty days and no more than once a month. The demand can seek examination of the books and records with respect to the trust, with the right to copy the relevant portions, or at the beneficiary’s option a verified statement setting forth those entries. You get ten days to comply, and on a refusal or a failure the beneficiary may apply to the court for an order compelling you. A supplier who serves that demand and hears nothing has built half a diversion case without filing anything.

Read the same section from the position of somebody trying to negotiate for you. When counsel calls a funder about a construction file, the documents that make the call expensive are the subcontract, the requisition history with retainage broken out, the reconciliation correspondence, and a §75 ledger showing every dollar of project money going where §71(2) says it goes. With those records, the argument that the funder took trust money is a document review. Without them, the same argument is an assertion, and a receivables desk does not discount a balance because somebody asserted something.

Five Ledgers, Ten Days: Lien Law §75 requires entries for trust assets receivable, trust accounts payable, trust funds received, trust payments made and transfers for advances, and makes their absence presumptive evidence of diversion. Lien Law §76 lets a beneficiary whose claim has been payable 30 days demand examination or a verified statement, once a month, with 10 days to comply before a court order is sought.

4. Where the Funder’s UCC-1 Runs Into the Trust

Every advance you took is secured by a financing statement covering accounts and general intangibles, and your construction receivable is squarely an account, because U.C.C. §9-102(a)(2) defines the term to include a right to payment for services rendered. The complication is that Lien Law §70(1) treats that same right to payment as a trust asset from the moment it comes into existence. Lien Law §72(1) then provides that any transaction by which a trust asset is paid, transferred or applied for a purpose other than a §71 trust purpose, before all trust claims are paid or discharged, is a diversion of trust assets, whether or not any trust claim existed at the time. U.C.C. §9-203(b)(2) conditions attachment on the debtor having rights in the collateral or the power to transfer rights in it, which is exactly the question a trustee’s limited interest raises.

There is real New York authority that a lender taking construction contract payments in repayment of its own loan can be held to have diverted trust assets. In Aspro Mechanical Contracting, Inc. v. Fleet Bank, N.A. (N.Y. 2004), a bank received payments from a public authority on a turnkey housing contract and applied them to its construction loan while subcontractors went unpaid. The Court of Appeals treated the bank as answerable under article 3-A and pointed to the notice of lending in Lien Law §73 as the affirmative defense the bank had available and never used. Section 73 preserves a lender’s credit for advances only where a notice is filed with the county clerk of each county holding the improved property, or with the department head and financial officer on public work, naming the parties, describing the improvement, and stating the dates of advances, a termination date no more than two years out, and the maximum outstanding balance.

Merchant cash advance funders essentially never file one. They file a UCC-1 with the Department of State, which perfects a security interest in accounts and tells the world nothing about a construction trust, and §73(4) strips the credit entirely from a transferee that fails to answer a beneficiary’s written demand for a verified statement within ten days. Meanwhile Lien Law §15 requires an assignment of contract moneys due or to become due for an improvement to be filed with the county clerk within ten days, provides that no such assignment has any validity until filed, and makes an unfiled one void against a later good faith assignee for value who files first. Before you assume your funder holds what it says it holds, somebody should pull the lien docket in the borough where your job sits, not only the state UCC index. Our page on what a UCC lien reaches when a funder intercepts receivables covers the interception itself.

Now read it the other way, because the honest version keeps you out of trouble. Lien Law §72(1) closes with a protection for a holder in due course and for a purchaser in good faith for value and without notice that a transfer to him is a diversion, and your funder will plead exactly that. N.Y. U.C.C. §9-311(a) does not list the Lien Law among the statutes whose filing displaces article 9 filing, so how §15 and article 9 fit together is an argument rather than a rule. We could not locate a reported New York appellate decision squarely holding that an advance funder’s sweep of a subcontractor’s receivables is an article 3-A diversion, and anyone who tells you otherwise should be asked for the citation. Treat this as a genuine and unresolved pressure point that changes settlement posture, and put it in front of New York construction counsel before it goes in front of a funder.

Search the County Clerk, Not Just the UCC Index: Lien Law §73 gives a lender an affirmative defense only where a notice of lending was filed, with a termination date no more than two years out and a second notice within 60 days before termination, and §73(4) strips the credit if a beneficiary’s demand for a verified statement goes unanswered for 10 days. Lien Law §15 separately requires an assignment of contract moneys to be filed within 10 days. (N.Y. Lien Law §73)

5. The One Line That Stops a Restraining Notice

Lien Law §72(2) is a single sentence and it is the most useful sentence in the article for you: trust assets shall not be levied upon or subject to a restraining notice issued pursuant to section fifty-two hundred twenty-two of the civil practice law and rules as the individual property of the trustee. Measure that against what a restraining notice ordinarily does to your week. Under C.P.L.R. §5222(b) a garnishee served with one may hold twice the amount due on the judgment, and against a third party the notice binds for a year, which is how a single notice served on your bank on a Thursday ends a payroll run on Friday and stops three jobs the week after.

The protection also runs in a direction most owners never consider, because §72(3) makes you a defender rather than a bystander. Where a trustee is a party to an action in which trust assets are sought to be applied to a non-trust purpose, the trustee has a duty to defend, and beneficiaries holding trust claims may intervene to defend the trust themselves. On a file where a judgment creditor is reaching for job proceeds, that gives your unpaid suppliers a procedural reason to appear on the same side of the caption you are on. That alignment is unusual in a construction workout and occasionally decisive.

Section 72(2) is also narrower than it sounds at eleven at night, and the limits matter more than the headline. It addresses levy and restraining notices against trust assets as the individual property of the trustee. It does not undo an ACH remittance you contractually authorized, it does not make a commingled operating account untouchable at the counter, and it does not trace the money for you. A bank’s operations desk applies a restraining notice to an account number and leaves the character of the deposits to a motion, so your practical relief comes from C.P.L.R. §5239, the adverse claim proceeding, and from C.P.L.R. §5240, which lets a court modify or deny the use of any enforcement procedure. Both need counsel and a few days you will not feel you have.

Take advice before you change anything about how the debits are paid. Revoking an ACH authorization, opening an account at a different institution, or routing requisition payments away from the account your funder monitors are each legal acts with consequences under your agreement and, in some files, under Debtor and Creditor Law article 10. The version that works is the one where counsel documents the trust character of the funds first and addresses the account second, in that order. The version that does not is the one where the money moves on Monday and the explanation gets written in a deposition eight months later.

What §72(2) Does Not Reach: Lien Law §72(2) bars a levy or a C.P.L.R. §5222 restraining notice against trust assets as the individual property of the trustee. It does not stop a contractual ACH remittance, does not automatically release a commingled account, and does not do the tracing for you. The affirmative tools are the adverse claim proceeding at C.P.L.R. §5239 and the protective order at C.P.L.R. §5240.

6. What a Diversion Costs an Officer By Name

Lien Law §79-a(1) reaches past your entity. Any trustee of an article 3-A trust, and any officer, director or agent of that trustee, who applies or consents to the application of trust funds received as money or as an instrument for the payment of money to a purpose other than a trust purpose defined in §71, is guilty of larceny and punishable as provided in the penal law. For a contractor or subcontractor trustee the trigger is timing: liability attaches where trust claims are not paid within thirty-one days of the date they became due. The statute carries its own good faith exception, so a trustee who disputes in good faith the existence, validity or amount of a claim, and pays within thirty-one days after the dispute resolves, sits outside the section.

Section 79-a(2) is the provision you should read closely with counsel if you took an advance to fund a payroll. It treats an application of trust funds to a non-trust purpose as justifiable where the application repays another person for advances that person made to you and that were actually applied for the purposes of the trust, or where the amount does not exceed personal funds you advanced for trust purposes yourself. That is a narrower gate than it looks. It asks what the advance money was actually spent on, job by job, which is the same question §75 asks. A subcontractor who drew $250,000 across four positions and cannot show which dollars went to which trade is not positioned to walk through it.

The civil side has its own architecture and its own clock. Lien Law §77(1) requires the trust to be enforced in a representative action brought for the benefit of all beneficiaries, with practice conforming as nearly as may be to a class action under C.P.L.R. article 9, so this is not one supplier suing quietly. Section 77(3) lets the court compel an interim or final accounting, recover trust assets with interest, enjoin further diversion, award damages for breach, limit the trustee’s authority, require security and direct distribution. Section 77(2) sets the outside limit: no such action is maintainable more than one year after completion of the improvement or, for subcontractors and materialmen, more than one year from the date final payment under the claimant’s contract became due, whichever is later.

Two recent appellate decisions show how unforgiving the section is about self-help. In L.C. Whitford Co. v. Babcock & Wilcox Solar Energy (3d Dep’t 2025) a general contractor was held unable to reimburse itself out of settlement proceeds for project costs it had previously fronted, because the proceeds were trust assets and a trustee holds no beneficial interest until the trust claims are satisfied. In Flintlock Construction Services, LLC v. HPH Services, Inc. (1st Dep’t 2024) the court described how a general contractor can have standing to pursue a diversion claim against a subcontractor, both as a beneficiary and by equitable subrogation where it made involuntary payments to that subcontractor’s creditors to keep a project moving. Read together, they map the two directions this exposure travels on a distressed job, and both of them end at somebody signing a check.

Thirty-One Days and One Year: Lien Law §79-a(1) makes a diversion larceny for the trustee and for any officer, director or agent, where a contractor or subcontractor fails to pay trust claims within 31 days of the date due, subject to the good faith dispute exception. Lien Law §77(2) requires the civil representative action to be commenced within one year after completion of the improvement, or one year from when final payment under the claimant’s contract became due, whichever is later. (N.Y. Lien Law §77)

7. Retainage and the Four Clocks Nobody Diaries

Retainage on private work is capped now, and a surprising number of subcontracts still recite the old numbers. Gen. Bus. Law §756-c permits an owner, by mutual agreement of the relevant parties, to retain no more than five percent of the contract sum, allows a contractor or subcontractor to retain no more than the same percentage and never more than the owner is withholding, requires release no later than thirty days after final approval of the work, and charges interest at one percent per month from the date the retention was due and owing. Gen. Bus. Law §757(5) then voids a contract provision requiring retainage above five percent. On a $2,400,000 subcontract, the difference between five percent and the ten percent somebody typed into your flow-down is $120,000 of your own money.

Your first clock is the ordinary lien deadline. Lien Law §10 allows a notice of lien within eight months after completion of the contract or the final performance of the work, shortened to four months where the improvement is a single family dwelling. It separately allows a lien for retainage within ninety days after the date the retainage was due to be released. That last window is the one that gets missed, because it is keyed to a release date rather than to your last day on site. On a job that finished eleven months ago the eight month window may be gone while the retainage window has not even opened.

The second clock belongs to public work and it is short. Under Lien Law §12 a notice of lien on a public improvement may be filed at any time before construction is completed and accepted by the state or the public corporation, and within thirty days after that completion and acceptance. Copies go to the head of the department or bureau in charge, to the comptroller or the financial officer of the public corporation, and to any other officer charged with custody and disbursement of the funds applicable to the contract. Lien Law §5 tells you what it attaches to, which is moneys of the state or the public corporation applicable to the improvement, to the extent of the amount due or to become due on the contract.

The third and fourth clocks are duration and size. Lien Law §17 keeps a private lien alive for one year from filing unless an action is commenced with a notice of pendency, or an extension is filed with the county clerk inside the year, with a court order required on a single family dwelling and continuation available for no more than two successive years. Lien Law §18 runs the same one year rule on a public improvement lien. Lien Law §4 then caps the number: your lien is limited to the sum earned and unpaid on the contract when you file plus sums subsequently earned, and an owner is never liable across all liens for more than the value of labor and materials remaining unpaid. Do not let a funder’s payoff package quietly waive any of it, because Lien Law §34 voids a waiver of the right to file or enforce a lien while still allowing a written waiver delivered with or after payment.

Diary These Four Dates: 8 months after completion of the contract to file a private notice of lien, 4 months on a single family dwelling, and 90 days after the retainage was due to be released for a retainage lien, all under Lien Law §10. 30 days after completion and acceptance on public work under §12. 1 year of duration under §17 and §18. Retainage is capped at 5% and due within 30 days of final approval. (Gen. Bus. Law §756-c)

8. Your Surety Underwrites the Search You Have Not Run

If any part of your backlog is bonded, your surety is a more consequential creditor than any funder on the stack, and it reads documents the funder never asked for. State Finance Law §137 requires a payment bond on a state public improvement contract unless the contract is under $100,000, or under $200,000 where it is not a multiple award contract. A claimant without a direct contract with the general contractor has to serve written notice stating with substantial accuracy the amount claimed and the party for whom the labor was performed or to whom the material was furnished, delivered personally or by registered mail, within one hundred twenty days from the last labor or material. No action on the bond may be commenced after one year from the date the public improvement was completed and accepted.

Your surety is underwriting working capital, net worth and the work in progress schedule rather than your interest rate, and its recovery model assumes it can reach contract balances if it has to complete or pay. New York law supports that assumption. In Matter of RLI Insurance Co. v. New York State Department of Labor (N.Y. 2002) the Court of Appeals treated a surety that completed a defaulted contractor’s obligations and paid the trust beneficiaries as succeeding to their rights and to the owner’s, and noted that the article 3-A trust is broader than a Labor Law §220-b withholding because §70 reaches funds to become due or earned rather than only funds due or earned. The federal baseline runs the same way under Pearlman v. Reliance Insurance Co., 371 U.S. 132 (1962), where a paying surety’s subrogation defeated the contractor’s bankruptcy estate.

So your blanket financing statement covering all accounts and receivables reads, on a bond underwriter’s screen, as a competing claim on the exact fund it expects to reach. That is why a bonded subcontractor’s restructuring gets built around the bond line rather than around the cheapest headline discount. Resolving a position and getting a UCC-3 termination filed is often worth more to your capacity than shaving another five points off the settlement number, and a settlement documented as a term obligation payable monthly sits in a different place on your balance sheet than one payable daily out of job proceeds. None of that is a promise about what any surety will do, because sureties differ and each indemnity agreement is its own document.

The last piece is disclosure and it is genuinely uncomfortable. The general indemnity agreement you signed almost certainly requires notice of a default, a lien or a material change in financial condition, and it usually gives the surety broad access to your books. A funder’s notification to your general contractor under U.C.C. §9-406(a), instructing it to pay the funder directly, can travel to your surety and to a prequalification committee in the same week. On a public job it can put you outside a responsibility determination on the next bid. Have the conversation with your bond producer and with restructuring counsel in the same room and in the right order, because the timing of what gets disclosed is itself part of the plan.

One Hundred Twenty Days on the Bond: State Finance Law §137 requires a payment bond above $100,000 on state public improvement contracts, or above $200,000 where the contract is not a multiple award contract. A claimant with no direct contract must give written notice within 120 days of its last labor or material, and no action lies on the bond more than one year after the public improvement was completed and accepted.

Pay-If-Paid, and the Clause That Brings It Back to Life

New York is one of the states where you do not bear the owner’s credit risk by default. In West-Fair Electric Contractors v. Aetna Casualty & Surety Co., 87 N.Y.2d 148 (1995), the Court of Appeals held that a pay-when-paid provision forcing the subcontractor to assume the risk that the owner would never pay the general contractor is void as contrary to the public policy expressed in Lien Law §34. The reasoning is that such a clause prevents you from establishing a present amount due and unpaid, which you need in order to enforce your lien. A clause that merely fixes a reasonable time for payment is a different animal and survives.

Eleven years later the Court of Appeals reached the opposite result on facts that describe a great deal of New York City work. In Welsbach Electric Corp. v. MasTec North America, Inc., 7 N.Y.3d 624 (2006), the parties chose Florida law for a subcontract on a fiber optic network built in New York, Florida enforces pay-if-paid clauses, and the Court of Appeals honored the choice of law after holding that Lien Law §34 is not a policy fundamental enough to override it. Gen. Bus. Law §757(1) now voids a provision making a construction contract subject to another state’s law or requiring dispute resolution elsewhere. Article 35-E only reaches contracts of $150,000 or more and excludes public work and defined residential projects under §756, so read the governing law line on your own subcontract before anyone tells you what the clause means.

One more provision changed the balance of interests on a distressed job in a way that is useful to you in a workout. Labor Law §198-e makes a contractor taking a construction contract jointly and severally liable for wage debt incurred by a subcontractor at any tier, covering unpaid wages, benefits, wage supplements and the other remedies available under Labor Law §198. The lookback reaches violations occurring no earlier than three years before the claim, an employee must give the contractor ten days’ notice before suing, and the liability cannot be waived except through a collective bargaining agreement. It applies to construction contracts entered into, renewed, modified or amended on or after January 4, 2022. Your general contractor now has its own money at stake in whether your field payroll is funded, which is not sympathy but it is alignment.

Read the Governing Law Line Twice: A pay-if-paid clause that shifts the owner’s credit risk to a subcontractor is void under West-Fair Electric Contractors v. Aetna Casualty & Surety Co., 87 N.Y.2d 148 (1995), and enforceable where a valid out-of-state choice of law governs under Welsbach Electric Corp. v. MasTec North America, Inc., 7 N.Y.3d 624 (2006). Gen. Bus. Law §757(1) voids the out-of-state clause only in contracts article 35-E covers.

How the Advance Paper Itself Gets Attacked in New York

The trust argument sits alongside the ordinary merchant cash advance defenses rather than replacing them, and in New York those defenses start with whether your agreement is a purchase of receivables at all. The Second Department set out the analysis in LG Funding, LLC v. United Senior Properties of Olathe, LLC (2d Dep’t 2020), asking whether there is a reconciliation provision, whether the term is indefinite, and whether the funder has recourse if the merchant declares bankruptcy, and framing those as factors a court may weigh rather than as a checklist. Where a reconciliation clause exists on paper and never operated, courts have been willing to say so, as in AH Wines, Inc. v. C6 Capital Funding LLC (N.Y. Sup. Ct. 2020), which treated a reconciliation left to the funder’s sole discretion as illusory and indicative of a secured loan.

A mechanical contractor produced one of the more useful recent decisions on this. In J.P.R. Mechanical, Inc. v. Radium2 Capital, LLC (Bankr. S.D.N.Y. 2025), the court found that a once monthly reconciliation clause carrying no obligation to return overcollections was not a true reconciliation provision, that filing bankruptcy was not itself a default under the agreement although interference with collection was, and that guaranties combined with acceleration amounted to effective recourse. Then read the decision that cuts the other way before you get confident. Guttman v. EBF Holdings, decided in the Global Energy Services bankruptcy (Bankr. D. Md. 2025), treated a clause providing that the funder shall adjust as mandatory and as evidence of a genuine sale, and dismissed the usury counts where the trustee never alleged the provision failed in practice or that the merchant ever asked for reconciliation.

The rate arguments and the regulatory arguments sit behind that threshold question. Criminal usury under N.Y. Penal Law §190.40 sets the line at twenty-five percent per annum as a class E felony, General Obligations Law §5-521 confines a corporation to the criminal usury defense, and Adar Bays, LLC v. GeneSYS ID, Inc. (N.Y. 2021) holds that a criminally usurious loan is void in its entirety. Separately, Financial Services Law article 8 and 23 NYCRR Part 600 require a provider to disclose the financing amount, the finance charge, an estimated annual percentage rate, the total repayment amount and the term on financings up to $2,500,000, with penalties of $2,000 per violation and $10,000 for a willful violation payable to the state under §812. That statute spells out no private damages action and we have located no reported decision implying one, so treat a disclosure failure as regulatory exposure and negotiating posture rather than as your claim.

How much any of it is worth depends on your record rather than on the argument. In People v. Richmond Capital Group LLC (Sup. Ct. N.Y. County 2023, Index No. 451368/2020) the court reviewed more than one hundred forty sample agreements, found that mandatory reconciliation was a total sham, and computed effective rates of 250 percent and 2,496 percent on two of the advances. The First Department later vacated the monetary aspect and remanded while affirming liability, in a decision issued February 19, 2026. Files that settle well are the ones where the reconciliation requests, the denials, the bank records and the job cost ledger are already assembled, and that work applied to construction files is described further on our page about settling MCA debt as a construction contractor. One name on the list below is a settlement company that works the entire lifecycle of a business debt file, with attorneys in its network handling the filings and the litigation, while the other two cover broader debt and tax categories. Choose accordingly.

The Reconciliation Record Is the Case: Pull every reconciliation request you sent, every denial, the bank statements for the periods in dispute, and the job cost detail showing what the advance money actually funded. Under LG Funding, LLC v. United Senior Properties of Olathe, LLC (2d Dep’t 2020) the presence of a reconciliation provision is one factor a court weighs, and in Richmond Capital the question the court asked was whether it ever operated in practice.

Who Should You Call? Our Top-Rated Business Debt Firms

One firm on this list works the entire lifecycle of a business debt file, from stopping the daily debits through attorney-led negotiation, UCC lien removal, and a signed release. The other two cover broader debt categories that often sit alongside the advances. Choose accordingly.

★ Our Top Pick
#1

Delancey Street

Attorney-Led MCA & Business Debt Settlement - $100M+ Resolved Nationwide

The only firm here that handles the full arc of a business debt file: attorney-led negotiation, ACH revocation, legal defense, UCC lien removal, and a settlement agreement with a real release attached. Over $100M settled, no upfront fees, all 50 states, settlements at 30-60% of the balance.

Best for: Business owners carrying one or more advances who want aggressive, attorney-led negotiation with no upfront cost
Total Settled: $100M+
Settlement Range: 30-60%
Attorney-Led: Yes
Upfront Fees: None
Talk to Delancey Street Today Free consultation. No upfront fees. Settlements at 30-60%. (888) 559-0156
Call Now
#2

National Debt Relief

Largest U.S. Debt Settlement Firm - A+ BBB Rating - 550,000+ Clients

Not an MCA specialist. National Debt Relief does not negotiate advances, challenge confessions of judgment, or fight UCC liens. For the ordinary unsecured business debt sitting next to your advances, their scale and track record make them a reasonable option on that side of the ledger.

Best for: General unsecured business debt over $7,500 (not MCA-specific settlement)
Clients Served: 550,000+
MCA Settlement: No
Every Week You Wait, The File Gets More Expensive Stop the ACH debits, get the UCC lien addressed, and settle at 30-60%. Over $100M settled. Free consultation.
(888) 559-0156
#3

CuraDebt

25+ Years in Business Debt & Tax Resolution - IAPDA Certified

Not an MCA specialist either. CuraDebt handles business debt alongside IRS and state tax resolution, so if unpaid payroll taxes have stacked up behind the advances, they can work that front while the MCA side is negotiated.

Best for: Combined business debt and tax resolution (not MCA-specific settlement)
Tax Resolution: Yes (IRS & State)
MCA Settlement: No

Frequently Asked Questions

The GC paid us Friday and the funder debited Monday. Is that a problem under the Lien Law?
It can be. Lien Law §70 makes funds a subcontractor receives under the subcontract trust assets, and §71(2) lists the expenditures those assets may be applied to, which include claims of your lower tier subs, laborers and materialmen, payroll and materials taxes, benefits and wage supplements, and surety and insurance premiums accruing during the improvement. A remittance to a receivables funder is not on that list. Whether the debit is a diversion turns on whether trust claims on that job were outstanding when it cleared, which is a job by job question your §75 ledger should be able to answer.
Can my funder freeze the account we use for job payroll?
A funder with a judgment can serve a restraining notice, and under C.P.L.R. §5222(b) the bank may hold twice the amount due. Lien Law §72(2) says trust assets shall not be levied upon or subject to a §5222 restraining notice as the individual property of the trustee, which is a real defense, but it is one somebody has to raise for you. Banks apply the notice to an account number and leave the character of the deposits to a motion. The remedies that actually move money are the C.P.L.R. §5239 adverse claim proceeding and a §5240 order limiting the enforcement procedure, so call counsel the day it lands.
Could I personally be charged for paying an advance out of a progress payment?
Lien Law §79-a(1) makes a trustee, and any officer, director or agent of a trustee, guilty of larceny for applying trust funds to a purpose other than a §71 trust purpose, and for a contractor or subcontractor the trigger is failure to pay trust claims within thirty-one days of when they became due. There is a good faith dispute exception, and §79-a(2) treats repayment of advances that were actually applied to trust purposes as justifiable. Whether you fit inside either one is a question for criminal and construction counsel with your books in front of them, not one to answer from a webpage.
My funder says its UCC-1 beats the trust. Is that right?
Nobody can tell you that with confidence, and anyone who does should be asked for a citation. A construction receivable is an account under U.C.C. §9-102(a)(2) and also a trust asset under Lien Law §70(1), and Aspro Mechanical Contracting, Inc. v. Fleet Bank, N.A. (N.Y. 2004) held a lender answerable for applying construction payments to its own loan without the notice of lending Lien Law §73 provides. Against that, §72(1) protects a purchaser in good faith for value without notice of the diversion. We found no reported New York appellate decision resolving the question for a merchant cash advance funder.
How long do my subs and suppliers have to come after me for diverted trust funds?
Lien Law §77(2) bars a trust enforcement action commenced more than one year after completion of the improvement or, for a subcontractor or materialman claimant, more than one year from the date final payment under that claimant’s contract became due, whichever is later. The action has to be brought in a representative capacity for all beneficiaries under §77(1), following class action practice. Notice that the exposure is not confined to the entity: §77(3) relief includes an accounting and recovery of trust assets with interest, and §79-a puts officers, directors and agents into the caption on the criminal side.
Our subcontract says we get paid only if the owner pays the GC. Is that enforceable here?
Generally not, if New York law governs. West-Fair Electric Contractors v. Aetna Casualty & Surety Co., 87 N.Y.2d 148 (1995), held that a clause shifting the risk of the owner’s nonpayment onto the subcontractor is void as against the public policy in Lien Law §34. The exception that catches people is choice of law: in Welsbach Electric Corp. v. MasTec North America, Inc., 7 N.Y.3d 624 (2006), a Florida choice of law clause made the same kind of provision enforceable. Gen. Bus. Law §757(1) voids out-of-state choice of law clauses, but only in contracts that article 35-E covers.
Will settling the advances cost us our bonding capacity?
Carrying four positions and a blanket financing statement is usually worse for capacity than resolving them, but shape matters as much as the discount. Underwriters react to a competing claim on the contract balances they expect to reach, to an unresolved claim on a bonded job, and to learning about either from somewhere other than you. Getting a UCC-3 termination recorded as part of the release is frequently worth more than a few additional points off the balance. Your indemnity agreement almost certainly requires notice of a default or a material change, so read it before deciding what to disclose and when.
We are four months past our last day on the job. Have we lost the lien?
Not necessarily. Lien Law §10 allows a private notice of lien within eight months after completion of the contract, and four months where the improvement is a single family dwelling, and it separately allows a retainage lien within ninety days after the date the retainage was due to be released, which can open long after the main window closes. Public work is much tighter: under Lien Law §12 the notice must be filed before completion and acceptance and within thirty days after it. Send the last-work dates and retainage release dates for every open job and we will calendar them with you. Call (888) 559-0156.

Have the Trust Ledger and the Advance Paper Read Together

Send the subcontract, the last three requisitions with retainage broken out, whatever §75 records exist, and every advance agreement. You will get back which positions carry real defects, which payments were trust money, and the order to work them in. Looking costs nothing, and a fee arises only out of a settlement that closes.

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