Krinsky v Yazdi

[*1] Krinsky v Yazdi 2013 NY Slip Op 50051(U) Decided on January 10, 2013 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 10, 2013
Supreme Court, Kings County

Barbetta Krinsky, Plaintiff,

against

Hezghil Yazdi and RACHEL YAZDI (f/k/a RACHEL SHOUELA), JOHN and/or JANE DOE (the names being fictitious and referring to any and all of the, defendants' agents, guests, invitees, licensees, and visitors who were trespassers and/or were nuisance), Defendants.



2339/2009



Plaintiff Attorney: Richard Krinsky, 2117 Avenue R, Brooklyn, NY 11229

Defendant Attorney: Jamie Lehrer, Esq., Ahmuty Demers & McManus, 200 I.U. Willets Road, Albertson, NY 11507

David Schmidt, J.

Defendants move this court for an order pursuant to CPLR 6501 and 6514 to vacate a Notice of Pendency filed by plaintiff against defendants' property, and awarding defendants their costs and expenses. For the reasons that follow, the motion is granted.

Given the extensive litigation between the parties, their familiarity with the underlying facts is assumed. Accordingly, facts will only be repeated to the extent necessary for the legal analysis.

Discussion

Under New York Law, "[a] notice of pendency may be filed in any action in a court of the state or of the United States in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property." CPLR 6501. In the few cases to reach the Court of Appeals regarding the construction of this provision, the court has explained that the filing of a notice of pendency is an extraordinary remedy, and accordingly, courts should require "strict compliance with the statutory procedural requirements." 5303 Realty Corp., v O & Y Equity Corp., 64 NY2d 313, 320 (1984) (citation omitted). These same considerations "also mandate a narrow interpretation in reviewing whether an action is one affecting the title to, or the possession, use or enjoyment of, real property." Id. at 321. Accordingly, the court's task in a motion to cancel a notice of pendency is "not to investigate the underlying transaction" but to determine if the complaint on its face comes within the scope of CPLR 6501. Id.

Here, the underlying complaint alleges two causes of actions that relate to real property, [*2]namely, trespass and nuisance, and seeks to recover money damages. It is well settled, however, that neither theory would justify the filing of a notice of pendency. Id. at 322 (citation omitted) ("a trespass action seeking money damages only did not justify a notice of pendency as the judgment would not affect title to or possession of the realty"); Braunston v Anchorage Woods, 10 NY2d 302, 306 (1961) ("An action to abate a nuisance is not one affecting the title to, or the possession, use or enjoyment of real property"). Thus, the theories of tort liability advanced by plaintiff (and the money damages she seeks) are inadequate to support the filing of a notice of pendency, and as such, it must be cancelled.

For this reason, Moeller v Wolkenberg, 67 AD 487 (1st Dept 1902), relied on by plaintiff during oral argument, is inapposite. There, the court stressed that the reason the lis pendens was proper was because the judgment sought by plaintiff, an injunction, would affect real property. Id. 489-90.

In conclusion, the motion is granted insofar as it seeks to vacate the notice of pendency and is otherwise denied.

The foregoing constitutes the decision and order of the Court.

Dated: January 10, 2013

ENTER:

_______________________

J.S.C.