In re Lustbader Contracting Corp.

Miller, J. This is a motion to vacate a mechanic’s lien for willful exaggeration. As no ■ action or proceeding has yet been begun to enforce the hen, section 39 of the Lien Law does not apply. Moreover, that section appears to contemplate that the finding of willful exaggeration shall be made upon the trial of an action or proceeding to enforce the lien and not upon a motion prior to trial, based upon affidavits. A finding of willful exaggeration not only voids the lien (Lien Law, § 39), but also renders the lienor liable [876] damages (Lien Law, § 39-a). It is extremely unlikely that the legislature intended such a finding to be made in a summary manner upon affidavits, especially when consideration is given to the difficulty of determining the question of willful exaggeration upon conflicting affidavits as to the work done and its value. No language indicating such an intention upon the part of the Legislature is to be found in the statute. However, even apart from the question of the proper interpretation of the statute, the motion must be denied, since the court is unable on the conflicting papers presented to decide whether there was any willful exaggeration. The motion is denied.