When Can a Court Decide Lien Exaggeration Without a Trial?

Reviewed September 7, 2026.

In On the Level Enterprises, Inc. v. 49 East Houston LLC, 104 AD3d 500 (1st Dept 2013), the court explained that a willful-exaggeration claim may be decided summarily when the evidence is conclusive. When intent depends on disputed facts or credibility, trial is ordinarily required.

The contractor sought dismissal of the owner’s exaggeration claim. Although the owner had not conclusively established intentional exaggeration, that did not establish the contractor’s entitlement to dismissal. The contractor also failed to establish the absence of willfulness. Its principals supplied no affidavits addressing their calculation, and several charges remained unsupported. The court left the issue for the factfinder.

Documents and intent both matter

Preserve the calculation made when the lien was filed, including the contract, approved and disputed changes, invoices, payments and credits. An honest mistake is different from deliberate inflation, but calling an error innocent does not resolve conflicting evidence.

The 2013 opinion recalled and replaced the court’s November 2012 decision. Use the replacement opinion when citing the case. Section 39 addresses voiding a willfully exaggerated lien, while § 39-a specifies damages in qualifying enforcement proceedings. Neither makes every arithmetic dispute an automatic penalty case.

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

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