Practice point: The Appellate Division found that attorneys' fees were improperly granted pursuant to Lien Law §§ 39 and 39-a, since this was not an action or proceeding to enforce the lien, and the lien had been discharged without a finding of willful exaggeration. The Appellate Division noted that the statute is penal in nature, and must be strictly construed in favor of the person upon whom the penalty is sought to be imposed.
Student note: Although respondents failed to raise this issue in opposition to the petition, the Appellate Division reached it because it presents a legal issue that appears on the face of the record and could not have been avoided if raised at the proper juncture.
Case: Harrington v. Smith, NY Slip Op 02934 (1st Dep't 2016)
Here is the decision.
Tomorrow's issue: An assault on Transit Authority property.