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Successive Notices of Pendency

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  • Posted on: Sep 16 2022

By Jonathan H. Freiberger

A notice of pendency is a provisional remedy available to litigants seeking a judgment that affects title to real property.  5303 Realty Corp. v. O&Y Equity Corp., 64 N.Y.2d 313 (1984).  The rules concerning notices of pendency are found in Article 65 of the CPLR.  As the name suggests, a notice of pendency puts the world on constructive notice that an action has been commenced that may affect the title to the property and, accordingly, “[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.  

The notice of pendency is a powerful tool because “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.  Also, while CPLR § 6514 permits motion practice to cancel a notice of pendency, 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.” Id

“To counterbalance the ease with which a party may hinder another’s right to transfer property” the law requires “strict compliance with the statutory procedural requirements.”  Id. (citing, Israelson v. Bradley, 308 N.Y. 511 (1955)).  The ability to file a notice of pendency is deemed to be “an extraordinary privilege” and if “the terms imposed are not met, the privilege is at an end.”  Id.  

Among other requirements, a notice of pendency “is effective only if, within thirty days after filing, a summons is served on the defendant.”  CPLR § 6512; see also, NYCTL 1999-1 Trust v. Chalom, 47 A.D.3d 779 (2nd Dep’t 2008) (finding a notice of pendency invalid when summons not served within 30 days).  Similarly, a notice of pendency is valid for three years from the date of filing and “[b]efore expiration of a period or extended period, the court, upon motion … for good cause shown, may grant an extension for a like additional period.”  CPLR § 6513.  Courts have noted that the requirement that any request for an extension “must be requested prior to the expiration of the prior notice” is an “exacting rule” and a “notice of pendency that has expired without extension is a nullity.”  Matter of Sakow, 97 N.Y.2d 436, 442 (2002) (citations omitted).  Failure to follow the rules regarding notices of pendency could yield harsh results, but for good reason.  The New York Court of Appeals has held that “an expired or cancelled notice of pendency may not be refiled on the same cause of action or claim.”  Id. At 443.  In this regard, the Court stated that:

Filing another notice of pendency after the previous notice has expired or been cancelled renders the time limit in CPLR 6513 useless and undercuts an important incentive for diligent practice. We prefer the certainty of the “no second chance rule,” as it preserves the delicate balance between the interests of the claimant in the preservation of the status quo against the equally legitimate interests of the property owner in the marketability of his title.

Id. (citation and internal quotation marks omitted).

Article l3 of the RPAPL governs mortgage foreclosure actions.  Section 1331 of the RPAPL requires that “at least twenty days before a final judgment directing a sale is rendered, [plaintiff] shall file in the clerk’s office of each county where the mortgaged property is situated a notice of the pendency of the action, which shall specify, in addition to other particulars required by law, the date of the mortgage, the parties thereto and the time and place of recording.”  Compliance with RPAPL § 1331, however, would be impossible in light of the “no second chance rule” if a notice of pendency previously filed, expired or was otherwise cancelled.  CPLR § 6516, which was enacted in 2005 to address this issue, provides that successive notices of pendency may be filed in a mortgage foreclosure action if an earlier notice expired or otherwise became ineffective to enable a plaintiff to comply with RPAPL § 1331.  CPLR § 6516(a).  Otherwise, CPLR § 6516(c) codifies the “no second chance rule”.  It should be noted that the saving provision of CPLR § 6516 only applies to mortgage foreclosure actions and, by its specific terms, does not apply to mechanic’s lien foreclosures.  CPLR § 6516(a).

On September 14, 2022, the Appellate Division, Second Department, decided U.S. Bank Trust, N.A. v. Green-StevensonU.S Bank is a mortgage foreclosure action with a rather tortured history.  Suffice it to say, borrower moved to cancel a notice of pendency in the action because lender previously cancelled a notice of pendency in a prior action. Supreme court denied the motion and borrower appealed.  The Second Department affirmed on this point.  The Court noting the exception to the “no second chance rule,” stated:

However, as an exception to the general rule, CPLR 6516(a) provides that, “[i]n a foreclosure action, a successive notice of pendency may be filed to comply with [RPAPL 1331], notwithstanding that a previously filed notice of pendency in such action or in a previous foreclosure action has expired pursuant to [CPLR 6513] or has become ineffective because service of a summons had not been completed within the time limited by [CPLR 6512], whether or not such expiration or such ineffectiveness has been determined by the court.”

*   *   *

Contrary to the defendants’ contention, the plaintiff did not improperly file a successive notice of pendency when it filed the notice of pendency in this action, since CPLR 6516(a) specifically provides that a successive notice of pendency may be filed under the circumstances present here. Accordingly, the Supreme Court properly denied the defendants’ motion to cancel the notice of pendency filed in this action.  [Some citations 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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