Mallek v Felmine

Mallek v Felmine 2024 NY Slip Op 02808 Decided on May 22, 2024 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 22, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
WILLIAM G. FORD
LAURENCE L. LOVE, JJ.
2023-00495
(Index No. 508498/22)

[*1]Mark Lasak Mallek, et al., respondents,

v

Ian Felmine, etc., appellant, et al., defendant.

Denis G. Kelly & Associates, P.C., Long Beach, NY, for appellant.

Law Offices of Jaime Lathrop, P.C., Brooklyn, NY (Peter DeVries of counsel), for respondents.

DECISION & ORDER

In an action, inter alia, to recover a down payment made pursuant to a contract for the sale of real property, the defendant Ian Felmine appeals from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated December 1, 2022. The order granted the plaintiffs' motion to extend the time to serve the notice of pendency on the defendant Ian Felmine and denied that defendant's cross-motion pursuant to CPLR 6514 to cancel the notice of pendency.

ORDERED that the order is reversed, on the law, with costs, the cross-motion of the defendant Ian Felmine pursuant to CPLR 6514 to cancel the notice of pendency is granted, and the plaintiffs' motion to extend the time to serve the notice of pendency on that defendant is denied as academic.

In this action, inter alia, to recover a down payment made pursuant to a contract for the sale of real property, the plaintiffs moved to extend the time to serve the notice of pendency that was filed with respect to the property at issue on the defendant Ian Felmine (hereinafter the defendant). The defendant cross-moved pursuant to CPLR 6514 to cancel the notice of pendency. In an order dated December 1, 2022, the Supreme Court granted the plaintiffs' motion and denied the defendant's cross-motion. The defendant appeals.

Pursuant to CPLR 6501, "[a] notice of pendency may be filed only when 'the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property'" (Delidimitropoulos v Karantinidis, 142 AD3d 1038, 1039, quoting CPLR 6501). "When the court entertains a motion to cancel a notice of pendency in its inherent power to analyze whether the pleading complies with CPLR 6501, it neither assesses the likelihood of success on the merits nor considers material beyond the pleading itself; 'the court's analysis is to be limited to the pleading's face'" (Nastasi v Nastasi, 26 AD3d 32, 36, quoting 5303 Realty Corp. v O & Y Equity Corp., 64 NY2d 313, 321).

Here, the complaint, on its face, only asserts causes of action to recover monetary damages and does not seek relief that would affect the title to, or the possession, use, or enjoyment of, the property. As the judgment demanded by the plaintiffs would not affect the title to, or the possession, use, or enjoyment of, the property, the Supreme Court should have granted the [*2]defendant's cross-motion to cancel the notice of pendency and denied the plaintiffs' motion to extend the time to serve the notice of pendency on the defendant as academic (see Delidimitropoulos v Karantinidis, 142 AD3d at 1039; DeCaro v East of E., LLC, 95 AD3d 1163, 1164).

DUFFY, J.P., MILLER, FORD and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court