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QUESTIONS OF FACT ABOUT THE TIMELINESS OF THE NOTICE OF LIEN, THE CHARACTER OF THE WORK AND EXAGGERATION PRECLUDED SUMMARY DISCHARGE OF THE NOTICE OF LIEN, SUPREME COURT REVERSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the contractor’s notice of lien was valid on its face and should not have been summarily discharged because unresolved questions of fact required trial:

“A court has no inherent power to vacate or discharge a notice of lien except as authorized by Lien Law § 19 (6)” … . Pursuant to that provision, a court may summarily discharge a notice of lien where, among other things, “it appears from the face of the notice of lien that the claimant has no valid lien by reason of the character of the labor or materials furnished” or the notice was not timely filed … . …

“Because the lien was timely on its face, the court was not permitted to summarily discharge it on the basis of untimeliness” … . …

Petitioners attack the character of the labor furnished, asserting that respondent’s work in July 2016 was for a water line that was not part of any contract between the parties. This assertion merely “raises a factual issue as to the relationship of the last item of work to the parties’ contract … . …

“[A]lthough Lien Law § 39 provides that a willfully exaggerated lien is void, the issue of willful or fraudulent exaggeration is one that also ordinarily must be determined at the trial of [a lien] foreclosure action”  … . Matter of Beebe v Liebel, 2019 NY Slip Op 00337, Third Dept 1-17-19

 

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PETITION WAS PROPERLY DISMISSED BECAUSE IT DID NOT DEMONSTRATE SUBJECT MATTER... PLAINTIFF’S DECEDENT WAS NOT ENGAGED IN CONSTRUCTION WORK COVERED BY LABOR...