MERCHANTS BANK OF NEW YORK v. Esther Rosenberg, et al., appellants. (2006)

In an action to set aside alleged fraudulent conveyances of certain real property, Esther Rosenberg and Necha Rosenberg appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Jones, J.), dated May 12, 2005, as denied their motion to cancel a notice of pendency filed by the plaintiff, granted the plaintiff's cross motion for leave to amend the complaint to add them as party defendants, and deemed them served with the verified complaint nunc pro tunc.

ORDERED that the order is modified, on the law, by deleting the provision thereof deeming the appellants served with the verified complaint nunc pro tunc;  as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff.

 Contrary to the appellants' contention, the Supreme Court properly denied their motion to cancel the notice of pendency filed against the subject properties in this action.   While the appellant Necha Rosenberg was not timely served with the summons and complaint pursuant to CPLR 6512, it is undisputed that her husband, the defendant Israel Rosenberg, who owns one of the properties with her as a tenant by the entirety, was timely served under that statute.   Accordingly, the service upon Israel, who has an ownership interest in that property, was sufficient to preserve the notice of pendency (see generally Weiner v. MKVII-Westchester, 292 A.D.2d 597, 600, 739 N.Y.S.2d 432;  Slutsky v. Blooming Grove Inn, 147 A.D.2d 208, 212, 542 N.Y.S.2d 721;  Schwartz v. Certified Mgt. Corp., 78 A.D.2d 823, 433 N.Y.S.2d 144;  Micheli Contr. Corp. v. Fairwood Assoc., 73 A.D.2d 774, 423 N.Y.S.2d 533;  Jungreis v. Wickham, 40 A.D.2d 1016, 339 N.Y.S.2d 652).

 Moreover, while the appellant Esther Rosenberg is the sole record owner of the other property which is the subject of this appeal, the plaintiff has alleged that the property was fraudulently conveyed to her by her husband, the defendant Joshua Rosenberg, in an attempt to frustrate the plaintiff's rights.   Therefore, the timely service of the summons and complaint upon Joshua as the actual or equitable owner of the premises was adequate to preclude the cancellation of the notice of pendency with respect to that property (see Baer v. Schwartz, 14 A.D.2d 539, 218 N.Y.S.2d 97).   In this regard, the appellants' reliance upon Rabinowitz v. Larkfield Bldg. Corp., 231 A.D.2d 703, 647 N.Y.S.2d 820 is misplaced, since neither defendant with an ownership interest in the property was served in that action.

 The Supreme Court providently exercised its discretion in granting the plaintiff's cross motion for leave to amend the complaint to add the appellants as party defendants (see CPLR 1003;  CPLR 3025[b];  Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 471 N.Y.S.2d 55, 459 N.E.2d 164;  Nissenbaum v. Ferazzoli, 171 A.D.2d 654, 567 N.Y.S.2d 135).   However, the court erred in deeming the verified complaint to have been served upon the appellants nunc pro tunc (see Davis v. Davis, 75 A.D.2d 861, 427 N.Y.S.2d 891, affd. 52 N.Y.2d 850, 437 N.Y.S.2d 77, 418 N.E.2d 670;   Mohrmann v. Kob, 291 N.Y. 181, 51 N.E.2d 921;  Congregation Zemach David of New Sq. v. County of Rockland, 163 A.D.2d 668, 558 N.Y.S.2d 702), and it is the plaintiff's obligation to make proper service upon the appellants.