Lien Exaggeration, Credibility and the Replaced On the Level Decision

Reviewed September 7, 2026.

This article originally discussed the November 2012 On the Level decision. That opinion was recalled and vacated. The operative replacement is On the Level Enterprises, Inc. v. 49 East Houston LLC, 104 AD3d 500 (1st Dept 2013).

“Ordinarily at trial” does not mean “always at trial”

The replacement opinion recognizes summary disposition when evidence about willful exaggeration is conclusive. Where the explanation for unsupported charges depends on credibility, the court cannot simply choose between honest mistake and intentional inflation on conflicting papers.

In that case, the contractor had not shown that the owner’s exaggeration claim should be dismissed. The lack of conclusive proof against the contractor did not itself prove that the claim lacked merit. Missing affidavits from its principals and unsupported lien charges left an issue for the factfinder.

The earlier suggestion here that exaggeration can never be decided on summary judgment was too broad. The distinction is between conclusive evidence and a genuine factual dispute, not an unavoidable conflict between every case allowing summary judgment and every case requiring trial.

Maintain a contemporaneous lien worksheet and source records. Analyze the motion’s burden, the evidence of intent and the specific remedy sought under § 39 or § 39-a.

Kushnick Pallaci PLLC assists clients throughout New York with lien litigation and defense. Contact 631-752-7100 or vtp@kushnicklaw.com.

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