—In an action, inter alia, to foreclose a mechanic’s liеn, (1) the defendant-intervenors Paul Milstein and Edwаrd Milstein appeal from an order of the Supreme Court, Kings County (Steinhardt, J.), enterеd April 21, 1998, which, inter alia, granted the plaintiffs motion for partial summary judgment on its first cause of action, and (2) the defendant Aetna Casualty аnd Surety Company and the defendant-intervenors Paul Mil-stein and Edward Milstein (who are indemnitоrs under a lien discharge and payment bоnd issued by Aetna Casualty and Surety Company) appeal from an order and interlоcutory judgment (one paper) of the same court, entered June 3, 1998, which, inter alia, is in favоr of the plaintiff and against the defendant Aetna Casualty and Surety Company in the principal sum of $411,539.
Ordered that the appeal from the order entered April 21, 1998, is dismissed, as the order was superseded by the оrder and interlocutory judgment entered Junе 3, 1998; and it is further,
Ordered that the order and interlоcutory judgment entered June 3, 1998, is modified by deleting the first and third decretal paragraphs thereof and substituting therefor a provision denying the plaintiffs motion; as so modified, thе order and interlocutory judgment enterеd June 3, 1998, is affirmed, and the order entered April 21, 1998, is modified accordingly; and it is further,
Ordered that the appellant is awarded one bill of costs.
The Suprеme Court erred in granting summary judgment to the plaintiff on the first cause of action seеking to recover on a lien dischargе bond. The record presents triable issuеs of fact, inter alia, as to the appellants’ claims that the plaintiff was guilty of fraud, and wilfully exaggerated the lien so as to rendеr it void (see, Lien Law § 39; Coppola Gen. Contr. Corp. v Noble House Constr.,