Opinion
15-CV-890 (RRM)
02-12-2018
ROHAN JOHNSON, Petitioner, v. ROBERT N. DAVOREN COMPLEX, Respondent.
MEMORANDUM AND ORDER
BACKGROUND
On February 17, 2015, Petitioner Rohan Johnson filed a writ of habeas corpus under 28 U.S.C. § 2254, seeking to challenge an ongoing criminal action in Queens County and to be released from custody. (See Pet. (Doc. No. 1).) On March 21, 2016, by written decision, the Court dismissed the petition because Johnson had been neither convicted nor sentenced. (See Mem. & Order (Doc. No. 35).) Judgment entered the same day. (See Judgment (Doc. No. 36).)
Prior to the dismissal of his case, Johnson filed three notices of pendency in the County Clerks Offices in Queens, Kings and Bronx Counties, each of which lists numerous properties in which Petitioner Johnson claims an interest. (See Queens Cty. Not. (Doc. No. 29); Kings Cty. Not. (Doc. No. 30); Bronx Cty. Not. (Doc. No. 31).) On January 31, 2018, the Court received a letter from non-party Taquesha Jackson asking the Court to direct the Queens County Clerk to cancel the notice of pendency filed in this case against a property she owns located at 137-55 Bedell Street, Springfield Gardens, New York. (Jackson Ltr. (Doc. No. 42) at 1.) Jackson is currently in foreclosure proceedings and is unable to sell the property due to the notice of pendency. (Id. at 2.)
The three notices of pendency as filed on the docket in this Court are attached to this Memorandum and Order.
The Queens County Supreme Court has already vacated a fraudulent deed filed against this property, which purported to convey title from Jackson to A Fi Wi Lan-Ting Trust, with Johnson listed as trustee. (Jackson Ltr.at 5.) However, the notice of pendency filed in this habeas case remains.
For the reasons set forth below, this Court hereby ORDERS that each of the notices of pendency attached to this Order are CANCELLED, including the notice of pendency that includes Ms. Jackson's property.
DISCUSSION
Article 65 of the N.Y. Civil Practice Law and Rules allows a plaintiff, who brings a lawsuit claiming interest in real property, to file a notice of pendency (also called a "lis pendens"), which alerts future buyers or interest holders of a prior claim to a pending lawsuit that may affect title to that property. N.Y. C.P.L.R. §§ 6501-6516; see also Diaz v. Paterson, 547 F.3d 88, 90-91 (2d Cir. 2008) (describing New York law governing notices of pendency). The notice may be filed only "[i]n an action in which the plaintiff asserts a pre-existing interest in defendant's real property" and "prevents a potential transferee or mortgagee of the property from acquiring the status of innocent purchaser for value while the action is pending." Alexander, Practice Commentary, McKinney's, N.Y. C.P.L.R. § 6501. It must be "filed in the office of the clerk of any county where property affected is situated." N.Y. C.P.L.R. § 6511. The notice is a unique provisional remedy in that it permits a plaintiff, albeit in a narrow set of cases, to "file without advance notice or prior judicial review." Diaz v. Paterson, 547 F.3d at 91 (internal quotation marks omitted). "Where a notice of pendency of action is filed in a county clerk's office, but the action is brought in the United States Court, the application to cancel should be brought in the United States court and not in the state court." Frederick v. Baxter Arms Corp., 39 F. Supp. 609, 610 (E.D.N.Y. 1941); see also N.Y. C.P.L.R. § 6514; Cayuga Indian Nation v. Fox, 544 F. Supp. 542, 548-49 (N.D.N.Y. 1982) (finding that the federal court was the proper forum for challenges to the notices of pendency).
In the instant matter, all of the notices of pendency filed by Johnson, including that related to Jackson's property, are invalid. In his federal action, Johnson sought relief pursuant to a writ of habeas corpus pursuant to 28 U.S.C. § 2254 seeking to be released from custody in connection with a then-pending criminal action in Queens County. The relief sought by Johnson in the underlying action is wholly unrelated to any right, title or interest in property that could be asserted through the provisional remedies available through Article 65 of the CPLR. Moreover, the underlying action has been dismissed, which mandates cancellation of a notice of pendency. See N.Y. C.P.L.R. § 6514(a) ("Mandatory cancellation: The court, upon motion . . . shall direct any county clerk to cancel a notice of pendency . . . if the action has been settled, discontinued or abated . . .); see also Adams v. Smith, No. 07-CV-0452 (LEK) (RFT), 2010 U.S. Dist. LEXIS 90729, at *65 (N.D.N.Y. Sept. 1, 2010) (vacating notices of pendency where the underlying action has been dismissed).
CONCLUSION
For the reasons stated herein, the Court hereby ORDERS that each of the notices of pendency attached to this Order and filed in this action at Document Numbers 29, 30, and 31, are CANCELLED, and further directs that the County Clerks of Queens, Kings, and Bronx Counties take the necessary steps to reflect this Court's cancellation of such notices in the records of their respective offices.
The Clerk of this Court is directed to send a copy of this Memorandum and Order to petitioner Rohan Johnson at the address listed for him on the docket, and note the mailing on the docket.
SO ORDERED. Dated: Brooklyn, New York
February 12, 2018
/s/_________
ROSLYNN R. MAUSKOPF
United States District Judge
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