CAMPBELL v. SMITH (2002)

Order, Supreme Court, Bronx County (Joseph Giamboi, J.), entered May 14, 2001, which granted plaintiff's motion for summary judgment in this foreclosure action, and denied defendant's cross motion for summary judgment and to cancel the notice of pendency filed on November 18, 1999, and referred the action to a referee to ascertain and compute the amount due plaintiff, unanimously reversed, on the law, without costs, plaintiff's motion denied, defendant's cross motion granted, and the complaint dismissed.   The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint and canceling the aforementioned notice of pendency.

Plaintiff Devon Campbell, the administrator of Sybert Campbell's estate, brought this action to foreclose on a $110,000 wrap around mortgage executed by Minta and Hugh Smith to Sybert Campbell for the purchase of a residential building at 756 South Oak Drive.   In July 1996, plaintiff filed a notice of pendency against the property, and commenced a foreclosure action against Minta Smith, alleging that she owed $101,640.57 plus interest since September 13, 1990.   This action did not proceed to judgment.

In November, 1999, after the 1996 notice of pendency had expired, plaintiff filed a second notice of pendency regarding the same property.   He instituted a complaint seeking to collect on the alleged debt, averring, in paragraph 15 of the complaint, that there were no pending proceedings at law or otherwise to collect or enforce the note and mortgage, and that there was no other action pending which had been brought to recover the mortgage debt or any part thereof.

On April 26, 2000, plaintiff moved for summary judgment, and for an order appointing a referee to determine the amount due on the mortgage.   Defendant Minta cross-moved for summary judgment and to cancel the notice of pendency, arguing, in pertinent part, that plaintiff's 1996 action constituted a prior action pending for the same relief.   The IAS Court granted plaintiff's motion and denied Minta's cross motion.   We reverse.

 The notice of pendency is a provisional remedy which allows a plaintiff claiming an interest in real property to file a paper “warning all comers that if they then buy the realty or lend on the strength of it or otherwise rely on the defendant's right, they do so subject to whatever the action may establish as to plaintiff's right” (Siegel, N.Y. Prac. § 334, at 509 [3rd ed.] ).  CPLR 6513, entitled, Duration of Notice of Pendency, provides:

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.

Because a notice of pendency has a powerful effect upon the alienability of real property, courts require exacting adherence to the procedural requirements set forth in Article 65 of the CPLR (Matter of Sakow, 97 N.Y.2d 436, 441, 741 N.Y.S.2d 175, 767 N.E.2d 666;  5303 Realty Corp. v. O & Y Equity Corp., 64 N.Y.2d 313, 320, 486 N.Y.S.2d 877, 476 N.E.2d 276).

 Because plaintiff allowed the 1996 notice of pendency to expire, its effort to file a new notice of pendency concerning the same property in 1999 was a nullity (see Sakow, 97 N.Y.2d at 441, 741 N.Y.S.2d 175, 767 N.E.2d 666).  Moreover, as the filing of a lis pendens is a requisite to the entry of a final judgment in a mortgage foreclosure action, we grant defendants' motion for summary judgment dismissing the instant complaint (RPAPL 1331;  see also Slutsky v. Blooming Grove Inn, 147 A.D.2d 208, 212-213, 542 N.Y.S.2d 721;  Isaias v. Fischoff, 37 A.D.2d 934, 326 N.Y.S.2d 291).