David H. Katz et al., Appellants, v. Anchor Construction, Inc., Respondent

David H. Katz et al., Appellants, v Anchor Construction, Inc., Respondent. [669 NYS2d 208] [MAJORITY] Order and judgment (one paper), Supreme Court, New York County (Marylin Diamond, J.), entered on or about June 18, 1997, as amended by orders and judgments entered June 26, 1997 and July 3, 1997, which, in a proceeding to discharge a mechanic’s lien, insofar as appealed from, dismissed petitioners’ claim alleging a willful exaggeration of the lien and seeking damages under Lien Law § 39-a, unanimously affirmed, with costs. Petitioners’ reliance on Westbury S & S Concrete v Manshul Constr. Corp. (212 AD2d 596) is misplaced, since respondent’s lien waiver, which was given in consideration for payment of an amount much less than was being claimed by respondent, became void when petitioners did not make the stipulated payment and respondent filed the lien. With no other evidence tending to show that the amount set forth in the lien was deliberately exaggerated, the claim for damages under Lien Law § 39-a was properly dismissed (see, Fidelity N. Y. v Kensington-Johnson Corp., 234 AD2d 263). Concur — Ellerin, J. P., Nardelli, Wallach, Rubin and Tom, JJ.