By an Order to Show Cause dated March 8, 2007, petitioner SGS Associates, LLC (SGS), as the owner of certain premises, seeks an Order, pursuant to Lien Law § 19, summarily discharging certain Notices of Lien filed by the respondents, R.A. German Construction Corp. and R.A. German Architect, P.C. (collectively R.A. German).

By Notice of Cross-Motion, dated March 15, 2007, respondents seek leave of the Court, pursuant to Lien Law § 12-a, to amend their Notices of Lien so as to clarify the descriptions of the property which is to be encumbered by the liens.

SGS is a limited liability company, organized and existing under the laws of the State of New York, acting as a real estate developer. On September 6, 2002, SGS entered into an architectural services contract with R.A. German Architect, P.C., for professional architectural services in relation to the development of certain property. At that time the property was identified on New York City tax maps, etc., as Block 997, Lots 24, 25 and 26, in Brooklyn, New York. On September 17, 2002, SGS entered into a construction management contract with R.A. German Construction Corp. in relation to the development of the property. On May 19, 2006, SGS filed a Declaration of Condominium which established a plan for condominium ownership of the property. Pursuant to that filing, the three tax lots formerly known as Block 997, Lots 24, 25, and 26, were subdivided into nine new tax lots; one for each of the nine planned condominium units. The new tax lots were identified as Block 997, Lots 1001, 1002, [*2]1003, 1101, 1102, 1103, 1201, 1202, and 1203. Three of the nine units were thereafter purchased by private homeowners. On or about January 23, 2007, R.A. German Construction Corp. filed a Notice of Lien against SGS for the sum of $2,405,158.00. At the same time, on or about January 23, 2007, R.A. German Architect, P.C., filed a Notice of Lien against SGS for the sum of $21,310.00.

SGS contends that the Notices of Lien are defective and/or invalid for a number of reasons, and should be summarily dismissed. More specifically, SGS contends that the subject liens improperly constitute "blanket liens" against an entire condominium complex; that the liens incorrectly identify SGS as the owner of the entire condominium complex; that the liens incorrectly describe the property by using obsolete block and lot numbers; that notice of the liens was not served upon any of the owners of the property; and that the liens should be discharged because the statutorily mandated affidavits of service were not properly filed and are defective. SGS further contends that the Notice of Lien filed by R.A. German Architect, P.C., includes a contract price which was willfully exaggerated and inflated from $3,195,000.00 to $5,666,066.00. Petitioner also seeks costs and sanctions, and such other and further relief as the Court may deem just and proper for respondents' failure to release the liens after being given notice of their deficiencies.

R.A. German contends, inter alia, that they have substantially complied with the various requirements of the Lien Law; that the Notice of Lien are valid; and that any defects therein are merely technical deficiencies which may be properly cured by amendment.

The court cannot cancel or discharge a mechanic's lien on any ground other than "those specified under the applicable provisions of the Lien Law" (Milbank-Frawley Housing Development Fund Co. v Marshall Const. Co., 71 Misc 2d 42, 44 [1972], citing Matter of Cohen, 209 App Div 413 [1924], Supreme Plumbing Co. v Seadco Building Corp., 224 App Div 844 [1928]. "It is well settled that a court has no inherent power to vacate or discharge a notice of lien except as authorized by Lien Law § 19 (6)" (In Re Lowe, 4 AD3d 476 [2004], citing Dember Constr. Corp. v P & R Elec. Corp., 76 AD2d 540 [1980], Matter of Supreme Plumbing Co. v Seadco Building Corp., 224 App Div 844 [1928]).

Section 19 (6) of the Lien Law provides that such a lien may be discharged "[w]here it appears from the face of the notice of lien that the claimant has no valid lien by reason of the character of the labor or materials furnished and for which a lien is claimed, or where for any other reason the notice of lien is invalid by reason of failure to comply with the provisions of section nine [of the Lien Law], or where it appears from the public records that such notice has not been filed in accordance with the provisions of section ten [of the Lien Law]..."

As is relevant to the discussion herein, Section 9 of the Lien Law provides that a [*3]notice of lien shall state:

"1. The name and residence of the lienor; and if the lienor is a partnership or a corporation, the business address of such firm, or corporation, the names of the partners and principal place of business, and if a foreign corporation, its principal place of business within the state.

"1-a. The name and address of the lienor's attorney, if any.

"2. The name of the owner of the real property against whose interest therein a lien is claimed, and the interest of the owner as far as known to the lienor

...

"7. The property subject to the lien, with a description thereof sufficient for identification; and if in a city or village, its location by street and number, if known. A failure to state the name of the true owner or contractor, or a misdescription of the true owner, shall not affect the validity of the lien. The notice must be verified by the lienor or his agent, to the effect that the statements therein contained are true to his knowledge except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true."

Section 10 of the Lien Law relates to filing a lien within either the four month or eight month limitation, as applicable, and is of no importance to any discussion of the instant matter.Petitioner in this action asserts several alleged violations of Lien Law § 11, regarding respondents' service of the Notices of Lien. Petitioner contends that the liens were not properly served on the owners of the property and that the affidavits of service were not properly filed. The relevant portion of Lien Law § 11 provides that the "[f]ailure to file proof of such service - [the affidavit required by Lien Law § 11] - with the county clerk within thirty-five days after the notice of lien is filed shall terminate the notice of lien."

Petitioner also asserts that the liens should be summarily discharged because respondents, in violation of Lien Law § 11, did not serve the Notices of Lien upon the owners of the three condominium units which were purchased. Petitioner further asserts that respondents failure to identify the relationship of the parties in the affidavit of service is, pursuant to Lien Law § 11, an incurable defect.

Lien Law §19 (6) does not permit a court to summarily discharge a lien based on such violations of Lien Law § 11. Although the court may summarily discharge a lien in the absence of strict compliance with Lien Law § 11, and even in those instances where the owner of a property has actual notice of a lien (see e.g. Matter of Podolsky v Narnoc Corp., 196 AD2d 593 [1993]), such a discharge is not appropriate in the case. In Matter [*4]of Podolsky v Narnoc Corp., the court was presented with a clear violation of Lien Law § 11 because proof of service of the notice of lien was not filed with the County Clerk within 35 days of the filing of the lien, as required by Lien Law § 11 (196 AD2d at 594-595).In the present case, respondents filed affidavits of service of the Notices of Lien, by certified mail, as required by Lien Law § 11. There is also no indication, or argument, that respondents failed to file the affidavits of service within the time proscribed by the statute or otherwise failed to comply with Lien Law § 11.

Petitioners contention that one of the liens may have been willfully exaggerated is also not cognizable on this application for summary disposition. Willful exaggeration is not a violation determinable on the face of the lien, and is not a violation of sections 9 or 10 of the Lien Law, as required by Lien Law § 19 (6) for summary discharge. Pursuant to Lien Law § 39, willful exaggeration can only be asserted in an action to enforce a mechanic's lien and it is only in such a proceeding that a finding of willful exaggeration will render a lien void (see e,g, Executive Towers at Lido, LLC v Metro Const. Services, Inc., 303 AD2d 545 [2003]; Coppola Gen. Contr. Corp. v Noble House Const. of NY, Inc., 224 AD2d 856 [1996]). Moreover, a finding of willful exaggeration "requires proof that the lienor deliberately and intentionally exaggerated the lien amount"(J. Sackaris & Son, Inc. v Terra Firma Const. Mgt. & Gen. Contr., LLC, 14 AD3d 538, 541 [2005]; AJ Contr. Co, Inc. v Farmore Realty, Inc., 3 Misc 3d 110[A] [2004]). As such, summary discharge of the subject liens based on a claim of willful exaggeration is not proper here.

Petitioner's arguments that the subject liens are invalid because lienors violated Lien Law §9 also fail for several reasons.

Petitioner contends that the respondents claim a lien against the entire condominium complex, including that common areas and property not owned by SGS. Petitioner also contend that the Notices of Lien incorrectly identify the owner of the entire condominium complex as SGS Associates, LLC, and contain a misdescription of the property in that they reference superseded block and lot numbers. Petitioner argues that as such, the two liens should be summarily discharged because they constitute improper "blanket liens" against the entire condominium complex, and not just that property which is held by the respondents.

However, a fair reading of the Notices of Lien limits the liens to only that property which is owned by SGS. The Notices of Lien identify the three lots in which SGS still has an ownership interest, and state that the owner of the real property "against whose interest in that property the lienor claims a lien" is SGS. The Notices of Lien thus limit their scope to that interest in the property which is held by SGS.

Petitioner's reliance on Westgate Towers Associates v ABM Air Conditioning Refrigeration, Inc. (187 AD2d 600 [1992]) is misplaced. In Westgate Towers, the court found that the lienor failed to substantially comply with Lien Law § 9 (7) (187 AD2d at 600). However, in that case, the only description indicated on the face of the lien was "Westgate Towers East." By comparison, the Notices of Lien in the instant action specify [*5]Block 997, Lots 24, 25 and 26, and limit themselves to that property which is held by petitioner. The liens are thus limited on their face to that property held by petitioner, and it otherwise appears that respondents have substantially complied with the various requirements of Lien Law § 9.

Moreover, any argument that the liens should be discharged because lienor incorrectly described petitioner as the owner of the entire condominium complex is obviated by Lien Law § 9 (7), which provides that a misdescription of the owner, or a failure to state the name of the owner, does not affect the validity of a lien.

Petitioner's use of the original block and lot numbers is not a fatal flaw and does not compel the court to find that the liens at issue constitute improper "blanket liens" on the property. Lien Law § 23 provides that the Lien Law "is to be construed liberally to secure the beneficial interests and purposes thereof. A substantial compliance with its several provisions shall be sufficient for the validity of a lien and to give jurisdiction to the courts to enforce the same." In this case, and although the liens utilize the original block and lot numbers, the language of both liens limits each on its face to only that property in which SGS stills holds an interest.

Those cases on which petitioner relies, Matter of Atlas Tile and Marble Works, 191 AD2d 247 [1993], and Advanced Alarm Technology v Pavilion Assocs, 145 AD2d 582 [1988], do not hold to the contrary. Although in both of those cases the courts found that use of superseded block and lot numbers created a blanket lien against the entire property, neither of those cases established a per se rule that the use of superseded block and lot numbers is a fatal defect. Rather, the aforementioned cases stand for a rule that a Notice of Lien must describe the subject property sufficiently enough that the lien is limited on its face to that property which the lienor seeks to encumber.

In Atlas Tile, the court found the lienor failed to limit the lien to the particular condominium units that the lienor sought to encumber, and that the lien thus constituted an improper blanket lien against the entire property (191 AD2d at 248). In Advance Alarm, the court similarly found that the lienor failed to limit the lien to the particular condominium units which the lienor sought to encumber, and that the lien thus constituted an improper blanket lien against the entire property (145 AD2d at 584). In this action, the court is compelled, on the facts before it, to apply the same reasoning to a contrary result. Considering the whole of the language of the Notices of Lien, and applying the requirements of the Lien Law liberally, the court finds that the Notices of Lien, as drafted, sufficiently describe the property and are valid on their face.

The liens in the instant action do not constitute "blanket liens" because, as discussed above, the language of the liens in this action do not seek to impose an encumbrance on the entire property, but rather limit themselves on their face to that property in which SGS still holds an interest. Had respondents in this action identified the property by using all of the current lot numbers, then the court would find that the liens constitute blanket liens against the entire property. The respondents use of the now [*6]superseded lot numbers, combined with the language limiting the liens to that property still owned by petitioner does not require such a result. Significantly, the Notices of Lien do not on their face impose any encumbrance on any property not owned by SGS. Although the liens could have been more artfully drafted by respondents, the liens are each valid on their face and any defects in the description of the property are technical deficiencies. It is only by petitioner's interpretation that liens could be read to include property not held by petitioner.

In the instant case, the lienors performed services and provided materials for the improvement of Block 997, Lots 24, 25 and 26, and the Notices of Lien substantially identify the property by address and limit themselves on their face to that property which is still owned by SGS. Any dispute regarding the validity of the liens, where there is otherwise no defect upon the face of each of the Notices of Lien, must await trial by foreclosure (see e.g. Retek v City of New York, 14 AD3d 708 [2005], citing In Re Lowe, 4 AD3d 476 [2004], Dember Const. Corp. v P&R Elec. Corp, 76 AD2d 540 [1980]).

Section 12-a of the Lien Law provides that, in a proper case and in the absence of prejudice to an existing lienor, mortgagee or purchaser in good faith, the court may permit the amendment of a notice of lien, nunc pro tunc. Lien Law § 12-a "was enacted to remedy those instances where liens were defeated for technical deficiencies" (Application of Upstate Builders Supply Corp., 63 Misc 2d 35, 36-37 [1970]). In the matter of The Application of Heidi Const. Corp. (20 Misc 2d 58 [1959]), the original lien as filed included three lots which were sold prior to the filing of the lien. The owner of the remaining 21 parcels sought to discharge the lien, but the court declined to discharge the liens and permitted the liens to be amended pursuant to Lien Law § 12-a to exclude the sold lots (see also Fremar Bldg. Corp. v Sand, 104 AD2d 1025 [1984][amendment permitted where a misdescription of property was partially accurate and there was thus no prejudice in allowing the amendment]; MacQuestern General Contractng, Inc. v HCE, Inc., 296 F Supp 2d 437, 450 [SDNY 2003][amendment permitted where a misdescription was substantially accurate and unambiguous]).

As required for amendment pursuant to Lien Law §12-a, there is no prejudice to any other "existing lienor, mortgagee or purchaser in good faith." There is no prejudice to the mortgagee because its liens are prior in time and unaffected. There is no prejudice to any purchasers in good faith because any purchasers in good faith will actually benefit from the amendments, as the same will only clarify which property interests are encumbered by the liens. In short, this is not the sort of circumstance where prejudice would clearly result from allowing the lienor to increase the amount of the lien or add property that is separate and apart from that which was originally designated (see e.g. Macquesten General Contracting, 296 F Supp 2d at 451).

The lienors have satisfied their obligation to substantially comply with the various sections of the Lien Law, and the court accordingly finds the instant case to be a proper one for amendment nunc pro tunc. Lienors are granted leave to amend the Notices of [*7]Lien to make the language of the liens clearer, to make reference to the current lot numbers, and to more clearly exclude that property which is no longer owned by SGS.

Petitioner's request for sanctions and costs for having to bring the instant petition, because petitioner requested that respondents discharge the subject liens prior to bringing the petition and respondents declined to do so, is denied. Accordingly, it

ORDERED, that the petition of SGS Associates, LLC, to summarily discharge the notices of lien filed by the respondents, R.A. German Construction Corp. and R.A. German Architect, P.C., is denied, and it is further

ORDERED, that the cross-motion of respondents R.A. German Construction Corp. and R.A. German Architect, P.C., is granted, and respondents are hereby granted leave to amend their Notices of Lien upon five days notice to the mortgagees, any other lienors and the owner of the subject property.

This constitutes the Decision, Opinion and Order of this Court.

Dated: May 14, 2007

ENTER,

_________________________

IRA B. HARKAVY

J.S.C.