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WELLBILT EQUIP. v. FIREMAN

275 A.D.2d 162 (2000)

719 N.Y.S.2d 213

WELLBILT EQUIPMENT CORPORATION, Respondent, v. SHELDON FIREMAN et al., Appellants, et al., Defendants.

Appellate Division of the Supreme Court of the State of New York, First Department.

October 12, 2000.

Attorney(s) appearing for the Case

Barry J. Glickman of counsel (Michael L. Slonim on the brief; Zeichner Ellman & Krause, L. L. P., attorneys), for respondent.

Jeffrey Turkel of counsel (Gary M. Rosenberg, Warren A. Estis and Norman Flitt on the brief; Rosenberg & Estis, P. C., attorneys), for appellants.

NARDELLI, J.P., TOM, MAZZARELLI and ELLERIN, JJ., concur.

OPINION OF THE COURT

FRIEDMAN, J.

On this appeal we are required to determine whether a Lien Law § 39-a claim, which seeks damages for the alleged wilful exaggeration of a lien, survives the consensual discharge of the lien. We conclude that where, as here, the lien is discharged on consent of the parties and the lienor's action to foreclose the lien is discontinued, a wilful exaggeration claim does not survive.

In or about September 1994, defendants...

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