Opinion
3500, 155548/16.
03-23-2017
MULBERRY DEVELOPMENT LLC, Plaintiff–Respondent, v. PEAK PERFORMANCE NYC, LLC, et al., Defendants–Appellants.
Morrison Cohen LLP, New York (Y. David Scharf of counsel), for appellants. Zisholtz & Zisholtz, LLP, Mineola (Joseph McMahon of counsel), for respondent.
Morrison Cohen LLP, New York (Y. David Scharf of counsel), for appellants.
Zisholtz & Zisholtz, LLP, Mineola (Joseph McMahon of counsel), for respondent.
SWEENY, J.P., RICHTER, MOSKOWITZ, FEINMAN, GISCHE, JJ.
Order, Supreme Court, New York County (Robert R. Reed, J.), entered November 18, 2016, which denied defendants' motion for partial summary judgment discharging a mechanic's lien as wilfully exaggerated, unanimously affirmed, without costs.
Defendants' motion was properly denied since they failed to establish that the mechanic's lien filed by plaintiff was willfully exaggerated (see Lien Law § 39–a ; On the Level Enters., Inc. v. 49 E. Houston LLC, 104 A.D.3d 500, 964 N.Y.S.2d 85 [1st Dept.2013] ; compare Strongback Corp. v. N.E.D. Cambridge Ave. Dev. Corp., 25 A.D.3d 392, 808 N.Y.S.2d 654 [1st Dept.2006] ). Inclusion of allegedly outstanding retainage fees was supported by the terms of the contract providing that 10 percent of all invoices would be retained until completion of the job. Furthermore, although, after the lien was filed, defendants paid some subcontractors directly, that does not render the lien retroactively exaggerated. We decline to adopt defendants' interpretation of Lien Law § 12–a as providing for an affirmative continuing duty on the part of the lienholder to amend the lien to reflect subsequent payments, or else be subject to a finding of willful exaggeration under Lien Law § 39–a.We have considered defendants' remaining contentions and find them unavailing.