| Pelc v Berg |
| 2009 NY Slip Op 09759 [68 AD3d 1672] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| Robert J. Pelc, Doing Business as Rite Jobs Performed, Appellant,v F. Steven Berg et al., Respondents. |
—[*1]
Appeal from an amended judgment of the Supreme Court, Erie County (John A. Michalek,J.), entered July 10, 2008 in an action for, inter alia, breach of contract. The amended judgmentawarded defendants money damages after a nonjury trial.
It is hereby ordered that the amended judgment so appealed from is unanimously modifiedon the law by vacating the award of damages with respect to the third counterclaim anddismissing that counterclaim and as modified the amended judgment is affirmed without costs.
Memorandum: Defendants hired plaintiff to perform construction work on their home, whichhad sustained water damage when a pipe froze and burst while they were in Florida. Defendantsbecame dissatisfied with plaintiff's work and refused to approve further insurance payments toplaintiff, whereupon plaintiff filed a notice of mechanic's lien pursuant to article 2 of the LienLaw and ceased working on the home. Supreme Court granted defendants' motion seeking todischarge the lien and placed the amount in dispute in escrow. Plaintiff then commenced thisaction for, inter alia, breach of contract and, in their answer, defendants asserted fourcounterclaims. Following a bench trial, the court dismissed the amended complaint and grantedjudgment in favor of defendants on their second through fourth counterclaims for, respectively,the amount of damages incurred by defendants in correcting plaintiff's negligent workmanship,plaintiff's slander of title based on malicious and fraudulent statements made by plaintiff insupport of the mechanic's lien and, inter alia, the amount of damages incurred by defendants indischarging the "willfully exaggerated Notice Under Mechanic's Lien Law." As limited by hisbrief, plaintiff challenges only those parts of the amended judgment awarding defendantsjudgment on the three counterclaims.
Addressing first the fourth counterclaim, we reject plaintiff's contention that the courtapplied the wrong standard in determining whether plaintiff had willfully exaggerated theamount of the mechanic's lien. The record establishes that the court applied the correct standard,i.e., whether there was a deliberate and intentional exaggeration of the lien amount (see J. Sackaris & [*2]Sons, Inc. v Terra Firma Constr. Mgt. & Gen. Contr., LLC, 14AD3d 538, 541 [2005], lv denied 4 NY3d 878 [2005]; Barden & Robeson Corp.v Czyz, 245 AD2d 599, 601 [1997]), rather than merely a genuine mistake or a disagreementconcerning the terms of the contract (see Goodman v Del-Sa-Co Foods, 15 NY2d 191,194-196 [1965]; Fidelity N.Y. v Kensington-Johnson Corp., 234 AD2d 263 [1996];Collins v Peckham Rd. Corp., 18 AD2d 860, 861 [1963]). The court thus properlyconsidered whether plaintiff acted in bad faith in asserting the lien amount (see generally P.J. Panzeca, Inc. v Alizio, 52 AD2d 919 [1976]). We further conclude that the recordsupports the court's determination that plaintiff willfully exaggerated the amount of the lien.
We reject plaintiff's further contention that the court erred in awarding attorney's fees soughtwith respect to the three counterclaims in question. "[I]t is well settled that 'a trial court is in thebest position to determine those factors integral to fixing [attorney's] fees . . . and,absent an abuse of discretion, the trial court's determination will not be disturbed' " (Matterof Connolly v Chenot, 293 AD2d 854, 855 [2002]; see 542 E. 14th St. LLC v Lee, 66 AD3d 18 [2009]; Harris BayYacht Club v Harris, 230 AD2d 931, 934 [1996]). We perceive no abuse of discretion in thiscase. The court properly awarded attorney's fees only for the attorney's representation ofdefendants in defending against and securing the discharge of the mechanic's lien, rather than forthe attorney's representation of defendants in obtaining affirmative relief. Even assuming,arguendo, that we agree with defendants that the award of attorney's fees must be determined bycalculating the percentage of the total lien amount that constitutes willful exaggeration andapplying that percentage to the total amount of attorney's fees incurred (see A & E Plumbingv Budoff, 66 AD2d 455, 457 [1979]; Grimpel v Hochman, 74 Misc 2d 39, 49[1972]), we conclude that the award of attorney's fees here was proper because the total amountof the mechanic's lien was the result of willful exaggeration.
With respect to the second counterclaim, seeking damages incurred by defendants incorrecting plaintiff's negligent workmanship, we conclude that the award of damages issupported by the record. With respect to the third counterclaim, for slander of title, we agreewith plaintiff that the evidence does not support the court's award of damages. Defendants failedto meet their burden of establishing that plaintiff made "a communication falsely casting doubton the validity of . . . title, . . . reasonably calculated to cause harm,and . . . resulting in special damages" (Fink v Shawangunk Conservancy, Inc., 15 AD3d 754, 756 [2005];see 39 Coll. Point Corp. v TranspacCapital Corp., 27 AD3d 454, 455 [2006]; Brown v Bethlehem Terrace Assoc.,136 AD2d 222, 224 [1988]). The notice of mechanic's lien filed by plaintiff merely constitutednotification of plaintiff's claim against the property and did not constitute a false communication(see generally Alexander v Scott, 286 AD2d 692 [2001]; Sopher v Martin, 243AD2d 459, 461-462 [1997]; 35-45 May Assoc. v Mayloc Assoc., 162 AD2d 389 [1990]).In addition, defendants have alleged only general damages, and the pleading of special damagesis a prerequisite for slander of title (see Kriger v Industrial Rehabilitation Corp., 8 AD2d29, 33 [1959], affd 7 NY2d 958 [1960]; Carnival Co. v Metro-Goldwyn-Mayer,23 AD2d 75, 77 [1965]; Glaser v Kaplan, 5 AD2d 829 [1958]). We therefore modify theamended judgment accordingly. Present—Scudder, P.J., Hurlbutt, Martoche, Centra andPeradotto, JJ.