P. J. Panzeca, Inc. v. Alizio

In an action to foreclose a mechanic’s lien, defendants appeal from so much of a judgment of the Supreme Court, Nassau County, entered May 12, 1975, after a nonjury trial, as (1) is in favor of plaintiff and against them and (2) adjudged that the lien was valid and subsisting. Judgment affirmed insofar as appealed from, without costs or disbursements. In our opinion, the decision of the trial court with respect to the issues raised on this appeal was correct and is fully supported by the evidence. It is obvious that as the owner did not pay to the contractor the amounts due under the raw-cost-without-profit agreement, the contractor concluded—in good faith—that he was entitled to claim the reasonable value of the material and labor—including a percentage for overhead and profit. This accounts for what appellants incorrectly characterize as "willful exaggeration”, an "exaggeration” which evaporates when the overhead and profit percentages are applied to (i.e., deducted from) the reasonable value of material and labor figures claimed in the notice of lien, rather than added to a figure ($2,299.99) which represents a difference between other figures. Willful exaggeration was clearly not established (see E-J Elec. Installation Co. v Miller & Raved, 51 AD2d 264). Hopkins, Acting P. J., Martuscello, Latham, Titone and Hawkins, JJ., concur.