TILDEN DEVELOPMENT CORP v. NICAJ (2008)

In an action to foreclose a vendee's lien and to recover a down payment made on a contract for the sale of real property and related expenses, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Hart, J.), dated March 8, 2007, as granted the motion of the defendants Maria Nicaj and Gjelosh Nicaj to cancel its notice of pendency, and the defendants Maria Nicaj and Gjelosh Nicaj cross-appeal from so much of the same order as granted the plaintiff's cross motion to amend the caption of the action and for leave to serve and file an amended complaint, and denied, as academic, their motion to dismiss the complaint insofar as asserted against them pursuant to, inter alia, CPLR 3211(a)(3).

ORDERED that the order is reversed insofar as appealed from, on the law, and the motion of the defendants Maria Nicaj and Gjelosh Nicaj to cancel the notice of pendency is denied;  and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The plaintiff, Tilden Development Corp. (hereinafter Tilden Development), entered into a written contract with the defendants Maria Nicaj and Gjelosh Nicaj (hereinafter the sellers) to purchase certain real property in Queens.   Alleging a breach by the sellers, Tilden Development commenced this action to foreclose a vendee's lien and to recover its down payment and related expenses.   It also filed a notice of pendency.   The sellers moved to dismiss the complaint insofar as asserted against them pursuant to, inter alia, CPLR 3211(a)(3).   The sellers contended that Tilden Development lacked the capacity to sue them because inquiries had revealed Tilden Development to be a nonexistent entity.   On the same basis, the sellers separately moved to cancel the notice of pendency.   The sellers also sought cancellation of the notice of pendency on the ground that this was an action for money only and, therefore, would not affect the title, use, possession, or enjoyment of the property.   In opposition, Tilden Development did not dispute that it was a nonexistent entity.   Rather, alleging misnomer, it cross-moved to amend the caption to name Tilden Management Corp. (hereinafter Tilden Management) as the plaintiff, and for leave to serve and file an amended complaint to add a cause of action to reform the underlying contract to name Tilden Management as the purchaser.   Tilden Development asserted that Tilden Management, a duly-authorized corporation, was the intended purchaser of the property and the proper plaintiff herein.   The Supreme Court granted Tilden Development's cross motion and, consequently, denied, as academic, the sellers' motion to dismiss the complaint based on a lack of capacity.   However, the court granted the sellers' motion to cancel the notice of pendency on the ground that the action was one for money only.

 The Supreme Court did not err in permitting the amendment of the caption to name Tilden Management as the plaintiff.   The sellers did not demonstrate that they would be prejudiced by the amendment (see Londono v. Altenkirsch, 261 A.D.2d 589, 688 N.Y.S.2d 922;  First Wis. Trust Co. v. Hakimian, 237 A.D.2d 249, 654 N.Y.S.2d 808;  Covino v. Alside Aluminum Supply Co., 42 A.D.2d 77, 345 N.Y.S.2d 721).   Consequently, the notice of pendency should also be amended to name Tilden Management as the plaintiff (cf. Key Bank Natl. Assn. v. Stern, 14 A.D.3d 656, 789 N.Y.S.2d 297).

Similarly, the Supreme Court providently exercised its discretion in granting Tilden Development leave to file and serve an amended complaint adding an additional cause of action to reform the underlying contract to name Tilden Management as the purchaser (see G.K. Alan Assoc., Inc. v. Lazzari, 44 A.D.3d 95, 840 N.Y.S.2d 378).   The sellers did not demonstrate that they would be prejudiced or surprised by the proposed amendment and, on the record presented, it cannot be said that the proposed amendment is palpably insufficient or patently devoid of merit (id.;   see Sopasis Constr. v. Solomon, 253 A.D.2d 489, 677 N.Y.S.2d 147).

Consequently, the Supreme Court properly denied, as academic, the sellers' motion to dismiss the complaint insofar as asserted against them based on a lack of capacity (see 442 Decatur St., LLC v. Spheres Realty, Inc., 14 A.D.3d 535, 787 N.Y.S.2d 669).

 Since the action seeks to foreclose a vendee's lien, the Supreme Court erred in granting the sellers' motion to cancel the notice of pendency on the ground that this action is one for money only (see Interboro Operating Corp. v. Commonwealth Sec. & Mtge. Corp., 269 N.Y. 56, 198 N.E. 665;  Wilson v. Power House Dev. Corp., 12 A.D.3d 505, 783 N.Y.S.2d 858).

The parties' remaining contentions are without merit.