Chi Shun Chang v 168 Realty Corp.

[*1] Chi Shun Chang v 168 Realty Corp. 2010 NY Slip Op 51954(U) [29 Misc 3d 1223(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 This opinion is uncorrected and will not be published in the printed Official Reports.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, et al.



27701/2008



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.

This action arises out of a contract, dated October 1999, of the sale of real property, whereby plaintiffs agreed to sell their condominium unit known as Unit No.3A, 133-32 41st Avenue, Flushing, New York to defendant 168 Realty Corp., and as a condition of the closing of title, defendant 168 Realty Corp. agreed, by an additional rider, to lease to plaintiffs another condominium unit in the same building, known as Unit #1A. Following the closing, plaintiffs became tenants of Unit #1A, but in 2007, defendants raised issues concerning plaintiffs' tenancy, and proceedings were instituted initially in this court and later in the Civil Court, Queens County. A warrant of eviction eventually was issued, and plaintiffs are no longer in possession of Unit #1A.

Meanwhile, in 2008, plaintiffs commenced this action alleging breach of the contract of sale, unjust enrichment, breach of the implied covenants of good faith and fair dealing, fraudulent misrepresentation, and breach of the covenant of quiet enjoyment.

Plaintiffs previously filed a notice of pendency in this action with respect to Unit #1A, 133-32 41st Avenue, Flushing, New York (indexed under Block 5041, Lot 1101). Defendants moved to cancel that notice of pendency pursuant to CPLR 6501 and 6514(b) and for an award of costs and expenses occasioned by the filing of the notice of pendency. By order dated January 14, 2010, the motion was granted only to the extent of cancelling the notice of pendency, and the Clerk was directed, upon payment of any fees which may be due and owing, to cancel the [*2]notice of pendency filed against Unit #1A. The court determined, among other things, that the notice of pendency was filed against Unit #1A, as opposed to Unit #3A.

On March 18, 2010, prior to the service of a copy of the January 14, 2010 order with notice of entry, plaintiffs, appearing pro se, filed a notice of pendency dated March 18, 2010, with respect to both Units #1A and #3A.

Defendants move pursuant to CPLR 6501 and 6514(b) to cancel and discharge the notice of pendency filed in this action on March 18, 2010, and to direct plaintiffs to pay all defendants' costs and expenses occasioned by the filing and cancellation of such notice of pendency. Defendants contend that the filing of the March 18, 2010 notice of pendency as against Unit #1A is baseless and constitutes frivolous conduct. Defendants also contend that the March 18, 2010 filing of the notice of pendency as against Unit #3A is unjustified because the judgment sought herein will not affect title to or possession, use or enjoyment of Unit #3A.

"[A] notice of pendency may not be filed in any action in which a previously filed notice of pendency affecting the same property had been cancelled or vacated or had expired or become ineffective" (CPLR 6516[c]). With respect to the filing of the notice of pendency as against Unit #1A, it is undisputed that the prior notice of pendency regarding the same property was cancelled based upon the court's determination the complaint did not support a filing of the notice of pendency against that unit.

With respect to the filing of the notice of pendency against Unit #3A, a court, when considering a motion to cancel a notice of pendency, reviews the pleading to ascertain whether the action falls within the scope of CPLR 6501 (see, 5303 Realty Corp. v O & Y Equity Corp., 64 NY2d 313, 320 [1984]). In this instance, plaintiffs made no request in their prayer for relief in the complaint for rescission of the deed for Unit #3A into defendant corporation, or for reconveyance of that unit to plaintiffs (see, Alternate Energy Management Corp. v Fontana, 141 AD2d 482 [2nd Dept. 1988]), but rather sought only monetary damages therein with respect to the eight causes of action. In addition, plaintiffs' bare inclusion of the phrase "return of the unit" in the allegations set forth in the first cause of action in the complaint does not support the filing of a notice of pendency against Unit #3A, because plaintiffs are essentially seeking the recovery of money damages stemming from a breach of the contract of sale as well as other related monetary claims (see, Interior Design Force Inc. v Dorfman, 151 AD2d 461 [2nd Dept. 1989]).

Thus, that branch of the motion by defendants to cancel the notice of pendency filed on March 18, 2010 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 does 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 March 18, 2010 notice of pendency in good faith because they attempted to use the notice to obtain an unfair advantage over defendant corporation in this action after the issuance of the January 14, 2010 order. In addition, plaintiffs did not agree to lift the March 18, 2010 notice of pendency at least with respect to Unit #1A after service of the copy of the January 14, 2010 order, or in response to this motion.

The appropriate remedy for such behavior is for the Court to shift the costs and expenses, [*3]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 defendants for an award of costs and expenses pursuant to CPLR 6514(c) is granted, and defendants are directed to provide, in addition to the order to be settled hereon, an affidavit of their counsel setting forth costs and expenses occasioned by the filing of the notice of pendency, and the hourly rate, number of 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 defendants' counsel.

J.S.C.