My only disagreement with the well-reasoned analysis of my colleagues here concerns the majority’s disposition with regard to the retainage issue. In my view, the conflicting evidence in the record sufficiently raises a genuine and material issue of fact; i.e., whether the defendant, Howard Savings Bank (hereinafter the Bank) improperly disbursed retainage for the payment of change orders, a use that is not authorized under the filed building loan agreement.
The Bank’s position on this key factual issue is not at all clear. Indeed, during oral argument of the various applications before the Supreme Court, counsel for the Bank virtually conceded that there was a question as to whether retain-age had been released early. Additionally, the appellant’s attorneys requested permission to conduct further discovery, prior to a final disposition of the motions, contending that this was necessary to properly rebut the Bank’s position, and support its own retainage claims. Although certain of the *479documents which purportedly support the appellant’s position have little probative value standing alone, specific individuals allegedly involved in the pertinent transactions and employed by the Bank have been identified in the motion papers. These individuals seemingly have personal knowledge of key facts, or have access to reliable information on the retainage issue, and Howell should be given the opportunity to examine them under oath.
I further disagree with the Supreme Court’s conclusion that the Bank was, in any event, entitled to release the retainage under the terms of the building loan agreement. The court’s conclusion was based on the Bank’s contractual right to enter into the premises upon the developer’s default, and to use any unadvanced funds to complete the project. Although the developer allegedly had been in default and the Bank arguably could have taken over possession and control of the project, it never exercised this remedy. Instead, the Bank allowed the developer to remain in possession and allegedly entered into a secret agreement modifying the building loan agreement by allowing funds earmarked as retainage, and designed to secure payment for materials and labor already provided by the appellant, to be used to fund change orders. If this alleged agreement in fact occurred, and resulted in a substantial reduction of funds which the appellant and other mechanic’s lienors reasonably expected would be available upon the completion of the project, I believe a supplemental filing was mandated under Lien Law § 22 (see, Security Natl. Bank v Village Mall, 85 Misc 2d 771, 787). Under the circumstances, I believe the appellant has asserted a viable claim that its lien is superior to the Bank’s and it should be given the opportunity to uncover facts in support of its position which are in the exclusive knowledge of the Bank and the developer.