Ordered that the appeals from so much of the order entered April 18, 2003, as denied those branches of the motion by the defendant third-party plaintiff, Terra Firma Construction Management General Contracting, LLC, which were for summary judgment dismissing the complaint insofar as asserted against it and for the imposition of a sanction against the plaintiff, as granted those branches of the plaintiff's motion which were for summary judgment against it on the first, second, and third causes of action, and as granted those branches of the motions of the third-party defendants Breger-Terjesen Associates and Hunts Point Multi-Service Center, Inc., which were for summary judgment dismissing the third-party complaint insofar as asserted against them, are dismissed; and it is further,
Ordered that the order entered April 18, 2003, is affirmed insofar as reviewed; and it is further,
Ordered that the judgment is affirmed insofar as appealed and cross-appealed from; and it is further,
Ordered that the order entered September 8, 2003, is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the third-party defendants, payable by the defendant Terra Firma Construction Management General Contracting, LLC.
The appeals from so much of the order entered April 18, 2003, as denied those branches of the motion by the defendant Terra Firma Construction Management General Contracting, LLC, which were for summary judgment dismissing the complaint insofar as asserted against it and for the imposition of a sanction against the plaintiff, as granted those branches of the plaintiff's motion which were for summary judgment against it on the first, second, and third causes of action, and as granted those branches of the motions of the third-party defendants Breger-Terjesen Associates and Hunts Point Multi-Service Center, Inc., which were for summary judgment dismissing the third-party complaint insofar as asserted against them, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 NY2d 241, 248). Those issues, which were raised on the appeals from the order, are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501 [a] [1]).
Contrary to the contention of Terra Firma Construction Management General Contracting, LLC (hereinafter Terra Firma), and United States Fidelity and Guaranty Company, also known as St. Paul Fire and Marine Insurance Company (hereinafter USFG), the Supreme Court had discretion regarding whether to cancel a lien due to the untimely nature of the plaintiff's response to their demand for an itemized and verified statement of lien ( see Lien Law § 38). Under the circumstances of this case, the Supreme Court's decision not to cancel the lien was a provident exercise of its discretion.
Also without merit is the claim of Terra Firma and USFG that the plaintiff failed to adequately set forth the items of labor and/or material and the value thereof which made up the amount for which it claimed a lien, and the terms of the contract under which such items were furnished, as required by Lien Law § 38. A determination of willful exaggeration of a mechanic's lien requires proof that the lienor deliberately and intentionally exaggerated the lien amount ( see Barden Robeson Corp. v. Czyz, 245 AD2d 599). Terra Firma and USFG failed to demonstrate that the plaintiff willfully exaggerated the lien ( see Minelli Constr. Co. v. Arben Corp., 1 AD3d 580).
The Supreme Court properly dismissed the third-party complaint. Breger-Terjesen Associates (hereinafter BTA) met its initial burden of demonstrating its entitlement to summary judgment dismissing the third-party complaint insofar as asserted against it by tendering sufficient evidence showing that it acted impartially and in good faith concerning the change orders request at issue ( see Alvarez v. Prospect Hosp., 68 NY2d 320; Zuckerman v. City of New York, 49 NY2d 557; Inner City Drywall Corp. v. Reliance Ins. Co. of N.Y., 263 AD2d 438; Arena Constr. Co. v. Town of Harrison, 71 AD2d 647; Helmer-Cronin Constr. v. Central School Dist. No. 1, 51 AD2d 1085).
Hunts Point Multi-Service Center, Inc. (hereinafter Hunts Point), met its initial burden of demonstrating its entitlement to summary judgment dismissing the third-party complaint insofar as asserted against it by tendering sufficient evidence showing that a settlement of a change order for hard-rock excavation for $50,000 with Terra Firma and a release of all claims between them disposed of the matter as between these two parties ( see Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York, supra; Nationwide Registry Sec. v. BR Consultants, 4 AD3d 298). Contrary to Terra Firma's contention, it failed to demonstrate the existence of a triable issue of fact to rebut either BTA's or Hunts Point's prima facie showing.
The parties' remaining contentions either are not preserved for appellate review or are without merit. Adams, J.P., Santucci, Mastro and Spolzino, JJ., concur.