BANKERS TRUST COMPANY OF CALIFORNIA v. Stuart Lifson, respondent. (2004)

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Berler, J.), dated January 9, 2003, which denied its motion for a judgment of foreclosure and sale.

ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings consistent herewith.

Contrary to the respondent's contentions, the Supreme Court erroneously determined that the notice of pendency in a foreclosure action could not be refiled after it expired.   The Court of Appeals decision in Matter of Sakow, 97 N.Y.2d 436, 741 N.Y.S.2d 175, 767 N.E.2d 666 does not alter our longstanding rule that a new notice of pendency may be filed in a mortgage foreclosure action despite the cancellation or expiration of a previous notice (see Horowitz v. Griggs, 2 A.D.3d 404, 767 N.Y.S.2d 860;  Campbell v. Smith, 309 A.D.2d 581, 768 N.Y.S.2d 182;  Wasserman v. Harriman, 234 A.D.2d 596, 598, 651 N.Y.S.2d 620;  Slutsky v. Blooming Grove Inn, 147 A.D.2d 208, 212-13, 542 N.Y.S.2d 721;  Robbins v. Goldstein, 36 A.D.2d 730, 731, 320 N.Y.S.2d 553).   Accordingly, the Supreme Court improperly denied the plaintiff's motion for a judgment of foreclosure and sale on the basis that the notice of pendency was a nullity.

However, it cannot be determined on this record whether the plaintiff either extended the notice of pendency filed on November 28, 2000, or timely filed a new notice of pendency such that it currently would be in compliance with the notice of pendency prerequisite to obtaining a judgment in this action (see RPAPL 1331).   Thus, the matter must be remitted to the Supreme Court, Suffolk County, for further proceedings to determine whether the plaintiff is currently in compliance with RPAPL 1331, and for a new determination of the motion thereafter.