Chi Shun Chang v 168 Realty Corp.

[*1] Chi Shun Chang v 168 Realty Corp. 2010 NY Slip Op 51949(U) [29 Misc 3d 1222(A)] Decided on November 15, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 15, 2010
Supreme Court, Queens County

Chi Shun Chang, et al.

against

168 Realty Corporation



31430-07



For the Plaintiffs: Schonfeld & Weinstein, LLP, by Li Zhuang, Esq., 80 Wall Street, New York, New York 10005

For the Defendant: Perry Ian Tischler, Esq., 38-39 Bell Blvd., Bayside, New York 11361

Charles J. Markey, J.

Plaintiffs commenced this action on December 20, 2007, alleging that they entered into a contract of sale in or about October 1999, whereby they sold their condominium unit to defendant, and as a condition of the sale, defendant agreed, by means of an additional rider to the contract, to lease to plaintiffs another condominium unit in the same building. The additional rider allegedly survived closing and constituted the lease agreement (Lease Agreement) between the parties, and fixed the rent at $1400.00 per month, for a ten-year term, with a certain option to renew. The complaint described the condominium unit sold to defendant as "Unit B-1a," "133-32 41st Avenue, Flushing, New York," and the leased condominium unit as a "store premises," but the contract of sale identified the sold unit as "Unit No. 3A . . . 133-32 41st Ave., Flushing, New York," and the Lease Agreement described the demised premises as "Unit 1A at 133-32 41st Avenue, Flushing, NewYORK (sic)," and indicated that the demised premises included "the partial basement directly under Unit 1A as designated by the Purchaser/Landlord."

Plaintiffs alleged that defendant interfered with their rights under the Lease Agreement by making false complaints to the New York City Building Department about the demised premises, and issuing plaintiffs a notice to cure, claiming they had breached their obligations under the lease. Plaintiffs additionally alleged they were not in violation of the lease agreement as asserted by defendant in the notice to cure. In their prayer for relief in the complaint, plaintiffs sought a judgment declaring they are not in default under the Lease Agreement and the notice to cure is void [*2]and of no effect, and permanently enjoining defendant from interfering with their rights under the Lease Agreement, or terminating their tenancy based upon the grounds set forth in the notice to cure, or alternatively, a judgment declaring that they are entitled to an additional reasonable period to cure any default before defendant may commence eviction proceedings, and enjoining defendant from commencing eviction proceedings during such additional cure period.

Plaintiffs sought and obtained a Yellowstone injunction (see, First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630 [1968]), which subsequently was vacated by order dated July 8, 2008, upon plaintiffs' failure to file an undertaking.

On August 27, 2008, after service of a copy of the July 8, 2008 order with notice of entry, plaintiffs filed a notice of pendency in this action on August 27, 2008, with the Queens County Clerk in relation to "Unit 3A, 133-32 41st Avenue, Flushing, New York." The notice of pendency designated the property affected by the notice as: "Section: [Blank] Block: 5041 Lot: 1106 Unit: 3A." The property description annexed to the notice of pendency described the subject premises as "Condominium Unit . . . Unit No. B-3A," and included a metes and bounds description.

Defendant seeks to cancel the notice of pendency filed in this action because, among other things, the judgment sought herein will not affect the title to, or the possession, use or enjoyment of Unit 3A a/k/a Unit B-3A, 133-32 41st Avenue, Flushing, New York.

A notice of pendency may be filed only in an action where the judgment demanded would "affect the title to, or the possession, use or enjoyment of, real property" (CPLR 6501). The right to file a notice of pendency in actions involving a tenant's right to the use and possession of leased premises has been recognized (see, CPLR 6501; Robert Fiancé Hair Design Inst., Inc. v Concourse Props. Co., 130 AD2d 564 [2nd Dept. 1987]).

The notice of pendency filed herein with the Queens County Clerk, however, covers real property, which is not the property alleged in the complaint to be the demised premises. Any judgment in this action regarding plaintiffs' rights under the Lease Agreement, thus, would affect the title to, or the possession, use or enjoyment of "Unit 1A, 133-32 41st Avenue, Flushing, New York" or "the store premises" at 133-32 41st Avenue, Flushing, New York, as opposed to "Unit 3A" a/k/a "Unit B-3A" at 133-32 41st Avenue, Flushing, New York (CPLR 6501). That branch of the motion to cancel the notice of pendency filed on August 27, 2008, therefore, is granted.

The Court, pursuant to CPLR 6514(c), has discretion to award costs and expenses incurred by the filing and cancellation of the notice of pendency, in addition to any costs of the action. The notice of pendency did not make reference to its being filed by counsel on behalf of plaintiffs, and instead, bears their individual signatures. In this instance, it appears that plaintiffs did not file the notice of pendency in good faith because they attempted to use the notice to obtain an unfair advantage over defendant in this action after the lifting of the Yellowstone injunction. Plaintiffs also did not agree to lift the notice of pendency in response to this motion, notwithstanding the complaint did not support a filing of the notice of pendency against Unit 3A a/k/a Unit B-3A.

The appropriate remedy for such behavior is for the Court to shift the costs and expenses, including reasonable attorney's fees, pursuant to CPLR 6514(c) to plaintiffs as the offending parties (see, Josefsson v Keller, 141 AD2d 700 [2nd Dept. 1998]). That branch of the motion by defendant for an award of costs and expenses pursuant to CPLR 6514(c) is granted, and defendant is directed to provide, in addition to the order to be settled hereon, an affidavit of its counsel setting forth costs and expenses occasioned by the filing of the notice of pendency, and the hourly rate, number of [*3]hours, and precise nature, of legal services rendered in seeking the cancellation of the notice of pendency.

Settle order, including an affidavit of services rendered by defendant's counsel.

J.S.C.