Justice Eileen Rakower
In this action to foreclose a mechanic’s lien for labor and materials, plaintiff claimed a lien for general construction services for $295,000. Defendants moved for summary judgment vacating the lien for willful exaggeration under Lien Law §§39 and 39a, and sought a preliminary injunction enjoining 5 LLC from enforcing a judgment of possession and executing on a warrant of eviction obtained against them. They also claimed as the basis for the warrant of eviction obtained against them was the existence of the lien, that upon its vacatur, 5 LLC should be restrained from enforcing the warrant. The court noted the fact a lien may contain improper charges did not establish a plaintiff willfully exaggerated a lien. Plaintiff conceded an “honest mistake” was made, seeking permission to amend the pending lien from $295,000 to $243,623.84. The court stated the absence of any explanation how plaintiff arrived at this “good faith” figure of $295,000 on the face of the lien, or that the “slightly revised claim” did not materialize until nearly a year after the lien’s filing resulted in the issuance of a warrant of eviction against defendants. Thus, while the lien must be declared void as conclusively exaggerated, the warrant of eviction was not stayed.
