Peak Construction v. Melone, et al.

In the recent Appellate Division, Peak Construction v. Melone, the Court discussed a party’s right to an award of counsel fees and the dismissal of a Lien Claim should it be found that the lien was wilfully overstated. In general, if a Lien Claim is wilfully overstated the lien is removed and the aggrieved party is entitled to counsel fees in any action brought under the overstated lien. Traditionally, the aggrieved party is entitled to any counsel fees it incurs in removing the unlawful and improper lien. The Peak Construction case is unique, however, as the Court considered whether an individual acting pro se may be entitled to an award of counsel fees. In ruling against Peak Construction in its application for $51,000.00 in pro se counsel fees, the Court explained that generally pro se litigants are not entitled to counsel fees for defending an action, and moreover, Defendant did not timely notify Plaintiff’s counsel that they would be seeking counsel fees and a dismissal of the Lien Claim. As such, the practical application of this case suggests that it behooves an aggrieved party to get an attorney involved if a Construction Lien is wilfully overstated, as these fees would be recoverable. On the other hand, should a party attempt to handle this matter on their own then generally they would not be entitled to counsel fees.

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