Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph J. Esposito, J.), entered August 10, 2007. The order denied plaintiff's motion for summary judgment and granted defendants' cross motion for summary judgment dismissing the complaint.

Order affirmed without costs.

Plaintiff commenced this action to recover damages pursuant to Lien Law § 39-a, asserting that the lien filed by defendants in the sum of $6,603.64 was willfully exaggerated. In support of his motion for summary judgment, plaintiff argued, inter alia, that there was no contract between the parties and no improvements done to his premises. Defendants cross-moved for summary judgment dismissing the complaint on the ground that the lien was removed by a satisfaction of mechanic's lien which defendants had filed after this action was commenced. The court below denied plaintiff's motion for summary judgment and granted defendants' cross motion for summary judgment dismissing the complaint. The court reasoned that plaintiff could not recover damages since the mechanic's lien was removed by defendants pursuant to a satisfaction of mechanic's lien.

Damages may not be awarded pursuant to Lien Law § 39-a unless the lien has been declared void for willful exaggeration after a trial in an action to foreclose a lien (see Wellbilt Equip. Corp. v Fireman, 275 AD2d 162, 166 [2000]). In the instant case, the lien was discharged voluntarily by defendants and no foreclosure action had been commenced against plaintiff. Consequently, the court below properly granted defendants' cross motion for summary judgment dismissing the complaint and denied plaintiff's motion for summary judgment. Accordingly, the order is affirmed.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: November 07, 2008