Del Carmen Guillen v Velastegui

[*1] Del Carmen Guillen v Velastegui 2012 NY Slip Op 52004(U) Decided on September 28, 2012 Supreme Court, Queens County Markey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 28, 2012
Supreme Court, Queens County

Maria Del Carmen Guillen, Plaintiff,

against

Maria L. Velastegui and DIGNA ORDONEZ, Defendants.



4700/2011



For the Plaintiff:

Law Offices of Richard La Salle

by Richard La Salle and Gergana Tzonkova, Esqs.

88-01 Roosevelt Avenue

Jackson Heights, New York 11372

For the Defendant Maria L. Velastegui:

William L. Sena, Esq.

37-32 75th St.

Jackson Heights, New York 11372

For the Defendant Digna Ordonez:

Ginsburg & Misk

by Hal R. Ginsburg, Esq.

215-48 Jamaica Ave.

Queens Village, New York 11428

Charles J. Markey, J.

Pursuant to a prior order of this Court dated May 18, 2011, plaintiff was directed to join the personal representative of Bolivar Guillen's estate, in order to afford complete relief to all parties to this matter. Thereafter, plaintiff sought to have this Court appoint her as the [*2]representative of the estate. As appointments of this type are generally resolved by the Surrogate's Court, this request was denied in an order dated November 15, 2011 (Guillen v Velastegui, 33 Misc 3d 1229(A), 2011 WL 6016049, 2011 NY Slip Op. 52156(U) [Sup ct queens County 2011] [decision by the undersigned]). The action was stayed pending the appointment.

Inasmuch as the court record is devoid of any information concerning plaintiff's attempts to effect joinder of the estate's personal representative, the previously imposed stay is now vacated. This determination is without prejudice to a future application to determine whether joinder should be excused in this matter under the guidelines set forth in CPLR 1001(b).

In light of the foregoing, this Court will now address movant's request to cancel the notice of pendency. Pursuant to CPLR 6501, a notice of pendency may be filed in any action in which the judgment would affect the title, possession, use, or enjoyment of real property. (see, 5303 Realty Corp. v O & Y Equity Corp., 64 NY2d 313 [1984]). As a result of the immediate impact that this device has on the alienability of property, together with the ease with which it may be obtained, a strict interpretation of the statute is required (see, Shkolnik v Krutoy, 32 AD3d 536 [2nd Dept. 2006]). As the gravamen of this action seeks relief pertaining to cooperative shares in Unit 2H, which constitute personal property rather than real property (see, Lombard v Station Sq. Inn Apts. Corp., 94 AD3d 717 [2nd Dept. 2012]; LI Equity Network, LLC v Village in the Woods Owners Corp., 79 AD3d 26 [2nd Dept. 2010]), the filing of the notice does not fall within the purview of the statute and, thus, warrants cancellation (see generally, Gyurek v 103 East 10th Owners Corp., 128 Misc 2d 384 [Sup Ct New York County 1985]).

Accordingly, defendant Maria L. Velastegui's motion, upon the foregoing papers, is granted to the extent that the County Clerk of Queens County is directed, upon payment of any fees which may be due and owing, to cancel the notice of pendency filed in this action against apartment 2H, located at 72-17 34th Avenue, Jackson Heights, in Queens County, New York. The Clerk shall enter upon the margin of the record a notice of cancellation referring to this order.

That branch of the motion which seeks attorney's fees is denied. In the present case, the cancellation of the notice of pendency was not under the specific grounds set forth in CPLR 6514. As a result, no authority exists to grant costs and disbursements under CPLR 6514(c) and no request has been made for costs under 22 NYCRR 130-1.1 (see, Congel v Malfitano, 61 AD3d 807 [2nd Dept. 2009]).

The foregoing constitutes the decision, order, and opinion of the Court.

Dated: September 28, 2012

J.S.C.

Appearances of Counsel:

For the Plaintiff: Law Offices of Richard La Salle, by Richard La Salle and Gergana [*3]Tzonkova, Esqs., 88-01 Roosevelt Avenue, Jackson Heights, New York 11372

For the Defendant Maria L. Velastegui: William L. Sena, Esq., 37-32 75th St., Jackson Heights, New York 11372

For the Defendant Digna Ordonez: Ginsburg & Misk, by Hal R. Ginsburg, Esq., 215-48 Jamaica Ave., Queens Village, New York 11428