Opinion
November 2, 1995
Appeal from the Supreme Court, Albany County (Harris, J.).
Respondent sold approximately 7,000 tons of limestone to RS Concrete and Paving, Inc. at a cost of $57,746.98. When RS failed to pay for the stone, respondent investigated its claim and determined that RS had delivered the stone to a construction site where petitioner was the general contractor. Respondent filed a mechanic's lien pursuant to Lien Law § 12. Petitioner, contending that it had no relationship with either respondent or RS and that it had supplied its own stone, moved to discharge the lien. Petitioner also asserted that the lien was willfully exaggerated and requested damages and counsel fees pursuant to Lien Law § 39-a, together with costs and disbursements. In opposition to the motion, respondent produced witnessed statements by RS drivers that they had delivered stone from respondent's facility to the construction site. Respondent requested an evidentiary hearing. At oral argument, petitioner acknowledged that it had received 7,000 tons of limestone at a cost of approximately $50,000 and admitted that it had not supplied its own stone. At the conclusion of oral argument and without a hearing, Supreme Court discharged the lien, granted petitioner counsel fees in the sum of $7,500, awarded costs of $1,014 and sanctioned respondent in the amount of $5,000. Respondent appeals.
We conclude that Supreme Court erred in awarding petitioner counsel fees, costs and sanctions. Supreme Court's inquiry into the merits of petitioner's application pursuant to Lien Law § 39-a was unnecessary. "The remedy afforded to lienees by section 39-a Lien of the Lien Law is available only when the lienor seeks to enforce his lien" ( Finger v Roth Bros. Regal Rest. Supply Corp., 2 Misc.2d 944, 945-946; see also, Reeve Serv. Corp. v Raab, 64 A.D.2d 826; Durand Realty Co. v Stolman, 197 Misc. 208, affd 280 App. Div. 758). Petitioner made a motion to vacate a mechanic's lien; therefore the relief granted beyond vacating the lien should have been denied. In the instant case the lienor did not seek to enforce or foreclose the lien; the granting of relief pursuant to Lien Law § 39-a was improper.
Cardona, P.J., Mercure, White and Peters, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as imposed sanctions and awarded counsel fees and costs; and, as so modified, affirmed.