Motion to Cancel or Vacate Notice of Lis Pendens (Notice of Pendency) in New York

What Is a Motion to Cancel or Vacate Notice of Lis Pendens (Notice of Pendency)?

Background

A notice of pendency, commonly known as a “lis pendens,” can be 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 v. O Y Equity (1984) 64 N.Y.2d 313, 315-16.)

“The purpose of the doctrine was to assure that a court retained its ability to effect justice by preserving its power over the property, regardless of whether a purchaser had any notice of the pending suit. Courts and commentators acknowledged the doctrine's potentially harsh impact on innocent purchasers, but they willingly accepted this as a necessary concomitant to preserving the judicial power.” (Id., at 319.)

Duration of Lis Pendens

Unless the Lis Pendens is cancelled through stipulation or court order, under CPLR §§6514-6515, its duration is for three (3) years from its filing date. (Gallo Brothers Construction v. Peccolo (2001) 281 A.D.2d 811, 813 [stating “[I]f the notice of pendency is not extended within that three-year period, the lien itself expires by operation of law;] see also, Modular Steel Sys. v. Avlis Contr. Corp. (1982) 89 A.D.2d 891, 891; see also, CPLR § 6513.)

Governing Statutes for Cancellation

CPLR § 6514(a) provides for the mandatory cancellation of a notice of pendency “by [t]he court, upon motion of any person aggrieved and upon such notice as it may require, shall direct any county clerk to cancel a notice of pendency, if service of a summons has not been completed within the time limited by section 6512; or if the action has been settled, discontinued or abated; or if the time to appeal from a final judgment against the plaintiff has expired; or if enforcement of a final judgment against the plaintiff has not been stayed pursuant to section 5519.” (Wells Fargo Bank, N.A. v. Hunte (2010) NY Slip Op 50637(U)

New York law allows federal courts to direct the relevant county clerk to cancel any notices of pendency filed in relation to federal actions “if the plaintiff has not commenced or prosecuted the action in good faith.” (N.Y. C.P.L.R. § 6514(b); see, e.g., Adams v. Smith (2010) No. 07 Civ. 0452, 2010 WL 3522310, at *20 quoting Cayuga Indian Nation v. Fox (1982) 544 F. Supp. 542, 548 [“[T]he proper forum for affected property owners who seek to cancel or correct a notice of pendency is the court in which the land claim is pending.”])

How to Structure the Motion

The proper forms for moving the court to vacate or cancel a notice of pendency are:

An Order to Show Cause for an Order pursuant to Section 6515(a) of the Civil Practice Law and Rules Cancelling the Notice of Pendency and a Memorandum in Support of the Motion Pursuant to CPLR §§ 6501, 6514 and/or 6515, seeking that the Court vacate and/or cancel the Notice of Pendency. (See generally, 5303 Realty v. O Y Equity (1984) 64 N.Y.2d 313, 315; CPLR § 6514 (a) and (b).)

Some Arguments for a Memorandum in Support Thereof

The Notice of Pendency should be vacated/canceled because "The suit does not affect the title to or the possession, use, or enjoyment of real property." (Delidimitropoulos v. Karantinidis (2016) 142 A.D.3d 1038, 1039 citing CPLR 6501; see Ewart v. Ewart (2010) 78 A.D.3d 992 [“A notice of pendency may be filed only when ‘the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property.’”])

“When the court entertains a motion to cancel a notice of pendency in its inherent power to analyze whether the pleading complies with CPLR 6501, it neither assesses the likelihood of success on the merits nor considers material beyond the pleading itself; ‘the court's analysis is to be limited to the pleading's face.’” (Nastasi v. Nastasi (2005) 26 A.D.3d 32, 36, quoting 5303 Realty Corp. v. O & Y Equity Corp. (1984) 64 N.Y.2d 313, 321; see Ewart v. Ewart, 78 A.D.3d at 992–993.)

The Notice of Pendency was filed in bad faith or with an ulterior motive, and thus, must be vacated or canceled. (Nastasi v. Nastasi (2005) 26 A.D.3d 32, 41 [“CPLR 6514(b) permits, but does not require, cancellation of a notice of pendency ‘if the plaintiff has not commenced or prosecuted the action in good faith.’ Where a plaintiff is using the notice of pendency for an ulterior purpose, a finding of lack of good faith can be made.”])

The Court’s Decision

Here are some examples of how courts have ruled:

“[A] notice of pendency may not be canceled for the reason that a court, looking into the future, may conclude that plaintiff will not on the merits finally prevail.” (Twaite v. Buckhorn Estates, Inc. (1981) 84 A.D.2d 632 citingInterboro Operating Corp. v Commonwealth Security Mtge. Corp. (1935) 269 N.Y. 56, 59.) “It is improper to amend a notice of pendency when [...] the allegations of the complaint state a cause of action affecting title or possession, use or enjoyment, of property described in the notice of pendency.” (Twaite, id.)

“Although the language of CPLR 6515 makes both subdivisions applicable to actions where ‘the judgment demanded would affect specific real property,’ the preferred course in a claim for specific performance is the utilization of subdivision (2) by canceling the notice of pendency upon an undertaking by the defendant seller unless plaintiff buyer posts an undertaking which will indemnify defendant. This ‘double bonding’ choice is preferable even when plaintiff's likelihood of success is doubtful.” (Andesco, Inc. v. Page (1988) 137 A.D.2d 349, 357 citing Ansonia Realty Co. v Ansonia Assocs. (1986) 117 A.D.2d 527.)

Documents for Motion to Cancel or Vacate Notice of Lis Pendens (Notice of Pendency) in New York

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Us Bank Trust National Association Not In Its Individual Capacity But Solely As Owner Trustee For V v. George Platania, Clinton Ford, Jerry Ford, The Unknown Heirs At Law Nextof Kin Distributees Executors Administrators, Trustees Devisees Legatees Assignees Lienors Creditors And Successors In Interest And General, Decedent Darlene Platania Fka Darlene Ford By Purchase Inheritance Lien Or Otherwise Any Right, And To The Premises Described In The Complaint Herein, New York State Department Of Taxation And Finance, United States Of America Southern District, Daniel Grgecic document preview - page 1 of 8

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