Minter: An Unearned Draw Demand Led to Contractor Liability

Reviewed September 7, 2026.

Remodeling Construction Services v. Minter, 78 AD3d 1677 (4th Dept 2010), involved a $96,000 house-rebuilding contract payable in draws. The contractor refused further work unless it received another draw, although the drywall milestone required for that payment had not been met.

The evidence showed $77,435 had already been paid, while only the first four draws, totaling $62,400, were earned under the modified schedule. The homeowner terminated after the refusal to continue. The appellate court dismissed the contractor’s complaint and granted the homeowner summary judgment on liability for breach of contract.

Damages and lien exaggeration were separate questions

The court did not determine all damages. The reasonableness of completion costs remained disputed, and summary judgment on the Lien Law § 39-a counterclaims was denied. An unsuccessful payment demand does not by itself establish deliberate lien exaggeration.

Before suspending work, compare the actual progress with the payment milestones, credits and contract notice requirements. Preserve dated photographs and project records. If litigation follows, submit admissible evidence addressing the specific facts; general denials did not overcome the homeowner’s proof here.

Kushnick Pallaci PLLC assists clients throughout New York with construction payment and termination disputes. Contact 631-752-7100 or vtp@kushnicklaw.com.

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Willfully Exaggerated Mechanic's Liens: Risks and Damages

Updated September 7, 2026. A mechanic's lien should state a supportable amount, with payments and credits properly accounted for. Deliberately inflating a lien to gain negotiating pressure can jeopardize the lien and expose the claimant to damages.

Willfulness matters

Lien Law § 39 provides for a lien to be declared void when a court finds willful exaggeration in the proceedings described by the statute. A disputed invoice or an honest calculation error is not automatically intentional exaggeration. The evidence supporting the amount and the claimant's explanation matter. See, for example, the discussion in Ferran Enterprises, Inc. v. Cauldwell-Wingate Co., Inc.

The statute does not provide automatic treble damages

When the conditions of § 39-a are met and the court declares a lien void for willful exaggeration in an enforcement action or proceeding, recoverable damages include the proven exaggerated amount, reasonable attorney's fees incurred in securing discharge, and the qualifying bond premium or interest on a deposit used to discharge the lien.

For example, if a court finds that a $50,000 lien deliberately includes $30,000 beyond the $20,000 actually due, the exaggeration component is $30,000, with other recoverable statutory items assessed separately. Section 39-a does not automatically triple that $30,000. A separate theory of liability would require its own legal basis and proof.

Build the calculation before signing the notice

• Reconcile invoices, approved and disputed changes, payments, credits and retainage.
• Keep supporting labor, delivery and project records for each component.
• Separate lienable work and materials from other contract claims; do not simply insert the entire unpaid contract price when work remains unperformed.
• Identify uncertain items for legal review, including specialized materials and disputed damages.
• Have someone check the arithmetic and supporting records before the notice is verified.

If an error is discovered, obtain advice promptly about amendment, discharge and any remaining deadlines. Removing or reducing a lien does not answer every issue in an existing dispute.

Kushnick Pallaci PLLC's resources on itemizing mechanic's liens and lien enforcement and defenses explain related issues.

This article provides general information. Whether a particular lien is willfully exaggerated depends on the evidence and procedural posture.

Pelc v. Berg: Willful Lien Exaggeration and Slander of Title Are Different Claims

Reviewed September 7, 2026.

In Pelc v. Berg, 68 AD3d 1672 (4th Dept 2009), the court upheld a finding of willful exaggeration based on deliberate inflation, rather than an honest mistake or genuine contract dispute. It also upheld fees for defending against and securing discharge of the lien, rather than fees for obtaining affirmative relief.

The court separately dismissed the homeowners’ slander-of-title counterclaim. On that record, the lien notified others of the contractor’s claim and the required false communication and specially pleaded damages had not been established. That ruling is not blanket immunity for false lien filings.

Check the amount and the evidence

Willful exaggeration can void a lien under Lien Law § 39 and create additional liability under § 39-a when the statutory requirements are met. Losing a payment dispute does not automatically establish intent.

Reconcile contract work, supported extras, payments and credits before filing. Keep the calculation and supporting documents. Owners challenging a lien should distinguish errors, disputed entitlement and evidence of deliberate inflation, and evaluate any separate tort claim on its own elements.

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

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