Terrence A. Pochmurski

Following a successful motion to vacate a construction lien and related Certificate of Action, the moving parties sought costs on a substantial indemnity scale.

The court found that the moving parties' first offer to settle met the requirements of Rule 49, entitling them to partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

After accounting for costs already paid by the responding party and applying a proportionality reduction, the court fixed the costs award at $18,000.

Following a decision granting in part the defendants' motion to vacate a construction lien, the successful moving parties requested to address costs in writing.

The court granted the request, noting the general expectation that costs be dealt with at each stage of a proceeding and the lack of prejudice to the plaintiff.

A timetable for written costs submissions was established.

The defendants brought a motion to vacate a construction lien and dismiss the plaintiff's action.

The plaintiff admitted the registered lien amount of $211,875 was incorrect and should have been approximately $167,000, relating to a subsequent oral contract rather than the initial formal contract pleaded.

The court held that the material misstatement in the lien amount could not be saved by section 6 of the Construction Lien Act.

The court vacated the lien and certificate of action but refused to strike the pleadings or dismiss the action, instead ordering the plaintiff to bring a motion to amend its statement of claim to assert the second contract for quantum meruit and breach of contract claims.