In re Lustbader Contracting Corp.

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 *876damages (Lien Law, § 39-a). It is extremely unlikely that the legislature intended…