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Notices of Pendency

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  • Posted on: Jul 28 2023

By Jonathan H. Freiberger

As discussed in a prior blog article [here], a notice of pendency (or lis pendens) is a provisional remedy governed by Article 65 of the CPLR.  The Court of Appeals, in 5303 Realty Corp. v. O & Y Equity Corp., 64 N.Y.2d 313 (1984), one of the leading cases on the subject, described the a notice of pendency as a:

potent shield to protect litigants claiming an interest in real property. The powerful impact that this device has on the alienability of property, when conjoined with the facility with which it may be obtained, calls for its narrow application to only those lawsuits directly affecting title to, or the possession, use or enjoyment of, real property. 

5303 Realty, 64 N.Y.2d at 315 – 16.  Indeed, the statute itself provides that a notice of pendency may only be filed where the “judgment demanded would affect the title to, or the possession, use or enjoyment of, real property.”  CPLR 6501. The notice of pendency acts as “constructive notice to all subsequent purchasers or incumbrancers” that an action is pending that may affect title to the property.  5303 Realty, 64 N.Y.2d at 318.  Thus, “[a] person whose conveyance or incumbrance is recorded after the filing of the notice is bound by all proceedings taken in the action after such filing to the same extent as a party.”  CPLR 6501; 5303 Realty, 64 N.Y.2d at 318.

The Court of Appeals in 5303 Realty reversed the Appellate Division, First Department, and cancelled a notice of pendency because the provisional remedy was not appropriate in a “suit to specifically perform a contract for the sale of stock representing a beneficial ownership of real estate.”  5303 Realty, 64 N.Y.2d at 316.  Similarly, a “notice of pendency is improper where the party who has filed it claims no right, title or interest in or to the real estate against which it is filed, and where the suit concerns simply some encroachment or wrong perpetrated by defendants on plaintiff’s land.”  Board of Managers of 334 East 54th Street Condominium v. 336 East 54 Street Assoc. LLC, 198 A.D.3d 560, 561 (1st Dep’t 2021) (citation and internal quotation marks omitted).  The same Court, in 801-803, LLC v. 805 Ninth Avenue Realty Group, LLC, 188 A.D.3d 478 (1st Dep’t 2020), affirmed the vacatur of a notice of pendency where “plaintiff claims no interest in defendant’s land but merely seeks to prevent defendants from committing a wrongful act against it” because plaintiff merely alleged that “defendants’ construction of a six-story building on the property is causing damage to the party wall, the roof, and other parts of its building, and asserts causes of action for, inter alia, nuisance and encroachment.”  801-803, LLC, 188 A.D.3d at 478 (citations omitted).  

It has been noted that the “statutory scheme permits a party to effectively retard the alienability of real property without any prior judicial review.”  5303 Realty, 64 N.Y.2d at 320.  Moreover, while CPLR 6514 provides for the cancellation of a notice of pendency in certain circumstances, the “court’s scope of review is circumscribed” and the “likelihood of success on the merits is irrelevant to determining the validity of the notice of pendency.”  5303 Realty, 64 N.Y.2d at 320 (citations omitted).  

As to the duration of a notice of pendency, Article 65 provides that:

A notice of pendency shall be effective for a period of three years from the date of filing. Before expiration of a period or extended period, the court, upon motion of the plaintiff and upon such notice as it may require, for good cause shown, may grant an extension for a like additional period. An extension order shall be filed, recorded and indexed before expiration of the prior period.

CPLR 6513.  Because the “ability to file a notice of pendency is a privilege that can be lost if abused” once lost, a successive notice of pendency may not be filed after the initial notice is cancelled.  In re Sakow, 97 N.Y.2d 436, 441 – 42 (2002) (citations omitted).  Moreover, an application to extend a notice of pendency must be made “prior to the expiration of the prior notice” and an expired notice, without extension is a “nullity”.  Sakow, 97 N.Y.2d at 442 (citations omitted).  The “no second chance” rule applies whether the notice expires or is cancelled.  Id.  [Eds. Note: an exception to the “no second chance” rule is found in CPLR 6516, which permits successive notices of pendency in mortgage foreclosure actions because RPAPL 1331 requires that a notice of pendency must be filed “at least twenty days before a final judgment directing a sale is rendered”.)

These issues were addressed in Strong Island Contracting Corp. v. Padilla, a case decided on July 26, 2023, by the Appellate Division, Second Department.  Strong Island was a mechanic’s lien foreclosure action in which plaintiff filed a notice of pendency.  Shortly before the expiration of the three-year post filing period, plaintiff moved to extend the notice for an additional three-year period.  Prior thereto, however, defendant’s counsel moved to be relieved and, in accordance with said motion, the motion court stayed all proceedings until the motion was decided.  Plaintiff’s motion was granted and the notice of pendency was extended.  Subsequently, the motion court granted counsel’s motion to be relieved and it continued the stay.  “Thereafter, the defendant moved to cancel the notice of pendency pursuant to CPLR 6513 and 6514, in effect, to vacate the [extension] order …, and to direct the plaintiff to pay the costs, expenses, and legal fees for making the motion.”  The motion court granted defendant’s motion.

On plaintiff’s appeal, the Second Department reversed and, in so doing, stated:

Pursuant to CPLR 6513, a notice of pendency is valid for three years from the date of filing and may be extended for additional three-year periods upon a showing of good cause. The extension, however, must be requested prior to the expiration of the prior notice. This is an exacting rule; a notice of pendency that has expired without extension is a nullity. A lapsed notice of pendency may not be revived. Here, the plaintiff timely requested and established good cause for extending the notice of pendency by demonstrating that the trial for the instant foreclosure action was delayed by the motion of the defendant’s counsel to be relieved and the court closures due to the COVID-19 pandemic.

Contrary to the defendant’s contention, it was not improper to extend the notice of pendency while all proceedings in this action were stayed.

(Citations and internal quotation marks omitted.)

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

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