Opinion
February 25, 1971.
Appeal from the Supreme Court, Albany County, J. ROBERT JOHNSON, J.
James H. Doran for appellant.
Tate Tate ( Rex S. Ruthman of counsel), for respondent.
This is an appeal from a judgment of the Supreme Court, Albany County, entered upon a decision at Trial Term which dismissed appellant's complaint to foreclose a lien and granted judgment to respondent Donovan Tree Service, Inc. on its counterclaim for willful exaggeration of the lien pursuant to sections 39 Lien and 39-a Lien of the Lien Law.
The instant litigation arose out of an oral contract between appellant and respondent, Donovan Tree Service, Inc., whereby appellant cut brush and trees in Harriman State Park. Appellant performed some work pursuant to the alleged contract and then brought this action to foreclose a lien in the sum of $2,000 as subcontractor against moneys alleged to be due under a contract with the State of New York. Respondent Donovan denied liability and counterclaimed for willful exaggeration of the lien. Appellant asserts that there was no willful exaggeration because there is a conflict of evidence as to the terms of the agreement, the amount of work done, and the amount due. However, the trial court in finding a willful exaggeration utilized appellant's version of the facts as to the amount of work done and the amount paid under the contract and thus under the admitted contract terms the greatest amount that could be due was $1,500 whereas the amount for which the lien was filed was $2,000. The exaggeration was therefore willful under the terms of the statute ( Collins v. Peckham Road Corp., 18 A.D.2d 860) and, accordingly, the judgment appealed from should be affirmed.
HERLIHY, P.J., STALEY, JR., GREENBLOTT and COOKE, JJ., concur.
Judgment affirmed, with costs.