Katz v. Anchor Construction, Inc.

Appellate Division of the Supreme Court of New York

Katz v. Anchor Construction, Inc.

247 A.D.2d 339, 669 N.Y.S.2d 208, 1998 N.Y. App. Div. LEXIS 1828

Appellate Division of the Supreme Court of the State of New York·Decided February 26, 1998·Published·Cited by 1 cases

Opinion

Order and judgment (one paper), Supreme Court, New York County (Marylin Diamond, J.), entered on or about June 18, 1997, as amended by orders and judgments entered June 26, 1997 and July 3, 1997, which, in a proceeding to discharge a mechanic’s lien, insofar as appealed from, dismissed petitioners’ claim alleging a willful exaggeration of the lien and seeking damages under Lien Law § 39-a, unanimously affirmed, with costs.

Petitioners’ reliance on Westbury S & S Concrete v Manshul Constr. Corp. (212 AD2d 596) is misplaced, since respondent’s lien waiver, which was given in consideration for payment of an amount much less than was being claimed by respondent, became void when petitioners did not make the stipulated payment and respondent filed the lien. With no other evidence tending to show that the amount set forth in the lien was deliberately exaggerated, the claim for damages under Lien Law § 39-a was properly dismissed (see, Fidelity N. Y. v Kensington-Johnson Corp., 234 AD2d 263).

Concur — Ellerin, J. P., Nardelli, Wallach, Rubin and Tom, JJ.

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Order and judgment (one paper), Supreme Court, New York County (Marylin Diamond, J.), entered on or about June 18, 1997, as amended by orders and judgments entered June 26, 1997 and July 3, 1997, which, in a proceeding to discharge a mechanic’s lien, insofar as appealed from, dismissed petitioners’ claim alleging a willful exaggeration of the lien and seeking damages under Lien Law § 39-a, unanimously affirmed, with costs.

Petitioners’ reliance on Westbury S & S Concrete v Manshul Constr. Corp. (212 AD2d 596) is misplaced, since respondent’s lien waiver, which was given in consideration for payment of an amount much less than was being claimed by respondent, became void when petitioners did not make the stipulated payment and respondent filed the lien. With no other evidence tending to show that the amount set forth in the lien was deliberately exaggerated, the claim for damages under Lien Law § 39-a was properly dismissed (see, Fidelity N. Y. v Kensington-Johnson Corp., 234 AD2d 263).

Concur — Ellerin, J. P., Nardelli, Wallach, Rubin and Tom, JJ.

Katz v. Anchor Construction, Inc., 247 A.D.2d 339, 669 N.Y.S.2d 208, 1998 N.Y. App. Div. LEXIS 1828 (N.Y. Ct. App. 1998).

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247 A.D.2d 339 (Katz v. Anchor Construction, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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