

Mulberry Dev. LLC v Peak Performance NYC, LLC (2017 NY Slip Op 02157)





Mulberry Dev. LLC v Peak Performance NYC, LLC


2017 NY Slip Op 02157


Decided on March 23, 2017


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on March 23, 2017

Sweeny, J.P., Richter, Moskowitz, Feinman, Gische, JJ.


3500 155548/16

[*1]Mulberry Development LLC, Plaintiff-Respondent,
vPeak 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.

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 AD3d 500 [1st Dept 2013]; compare Strongback Corp. v N.E.D. Cambridge Ave. Dev. Corp., 25 AD3d 392 [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.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 23, 2017
CLERK


