Opinion
31773/99.
Decided June 11, 2008.
Plaintiff: Shapiro Dicaro LLP, Commack NY.
Defendant: No Answering defendant in this JFS.
Plaintiffs, NYCTL 1998-1 TRUST AND THE BANK OF NEW YORK AS COLLATERAL AGENT AND CUSTODIAN, move, in this foreclosure action on a tax lien certificate for premises located at 5805 Fort Hamilton Parkway (Block 5721, Lot 37, County of Kings), for an order extending the notice of pendency, which was filed in the Office of the Kings County Clerk on September 10, 1999. The notice of pendency, pursuant to CPLR § 6513, expired three years later, on September 10, 2002. Plaintiffs failed to apply before that date to extend the notice of pendency. Therefore, the instant motion is denied.
This case has a history of delay, as I discussed in my March 6, 2007 decision and order in this matter, published at 14 Misc 3d 1237 (A), 2007 NY Slip Op 50403 (U). Justice Melvin Barasch granted a judgment of foreclosure and sale on March 23, 2001, appointing the late Edward Reich as Referee to conduct the sale of the premises. Mr. Reich's conviction and sentencing for bribery was widely reported in the press, including an article by Daniel Wise in the July 6, 2005 New York Law Journal. Plaintiffs' counsel moved two years subsequent to this to amend the 2001 judgment of foreclosure and sale to substitute the appointment of Mr. Reich as Referee. I observed in my March 6, 2007 decision and order:
The Court cannot understand why plaintiffs' counsel waited almost two years subsequent to Mr. Reich's conviction to make the instant motion. Further, plaintiffs' counsel failed to inform the Court why she failed to enforce a judgment that is almost six years old. To assist the Court in deciding this motion, the Court requested counsel to submit a supplemental affirmation to explain why there was a delay in seeking to substitute for Mr. Reich as referee and a lag in enforcing the March 23, 2001 judgment of foreclosure and sale. Plaintiffs' counsel's supplemental affirmation is silent as to the delay in seeking the substitution of Mr. Reich as Referee. With respect to the delay in enforcing the judgment, plaintiffs' counsel claims in the supplemental affirmation that plaintiffs instructed counsel to place a hold on the file, after cancelling a December 11, 2002 sale. The cancellation occurred because of discussions and research regarding alleged payments of real estate taxes by the homeowner, dating back to 1976. Counsel claims that after four years the New York City Department of Finance (DOF) determined that the homeowner did not make the required real estate tax payments, and DOF instructed counsel on February 9, 2007 to proceed with the foreclosure sale.
Further, because of plaintiffs' undue delay in moving to replace Mr. Reich as Referee and the failure to account for the undue delay, I vacated the March 23, 2001 judgment of foreclosure and sale without prejudice. I ordered that "plaintiffs' counsel is granted leave to submit a proposed order for a judgment of foreclosure and sale of the premises, located at 5808 Fort Hamilton Parkway, Brooklyn, New York, to this Court, with a satisfactory explanation as to why there was undue delay in proceeding to move for the substitution of Mr. Reich as Referee."
I have yet to receive from plaintiffs' counsel a proposed order for a judgment of foreclosure and sale with an explanation of the undue delay in moving to replace Mr. Reich as Referee. Instead, plaintiffs' counsel moves to have the Court extend an expired notice of pendency, in contravention of the express provisions of CPLR § 6513.
Discussion
CPLR § 6513, "Duration of Notice of Pendency," states: A notice of pendency shall be effective for a period of three years from the date of filing. Before expiration of a period or extendedperiod, the court, upon motion of the plaintiff and upon such notice as it may require, for good cause shown, may grant an extension for a like additional period . An extension order shall be filed, recorded and indexed before expiration of the prior period. [ Emphasis added] Professor Vincent C. Alexander, in his 2006 Supplementary Practice Commentary (McKinney's Cons. Laws of NY, Book 7B, CPLR C6513:1) discusses the issue of a stale notice of pendency and properly admonishes that "[t]he prudent practitioner seeking to extend the life of a notice of pendency should take the directives of CPLR 6513 at face value and obtain the extension permitted by the statute well before expiration of the preceding three-year period."
CPLR § 6501 provides that the filing of a notice of pendency against a property is to give constructive notice to any purchaser of real property or encumbrancer against real property of an action that "would affect the title to, or the possession, use or enjoyment of real property, except in a summary proceeding brought to recover the possession of real property." Professor David Siegel, in NY Prac, § 334, at 535 [4th ed] observes about a notice of pendency that:
The plaintiff files it with the county clerk of the real property county, putting the world on notice of the plaintiff's potential rights in the action and thereby warning all comers that if they then buy the property or lend on the strength of it or otherwise rely on the defendant's right, they do so subject to whatever the action may establish as the plaintiff's right.
The Court of Appeals, in 5303 Realty Corp. v O Y Equity Corp. ( 64 NY2d 313, 315), commented that "[a] notice of pendency, commonly known as a " lis pendens," can be a potent shield to litigants claiming an interest in real property." The Court, at 318-320, outlined the history of the doctrine of lis pendens back to 17th century England. It was formally recognized in New York courts in 1815 and first codified in the Code of Procedure [Field Code] enacted in 1848. At 319, the Court stated that "[t]he purpose of the doctrine was to assure that a court retained its ability to effect justice by preserving its power over the property, regardless of whether a purchaser had any notice of the pending suit," and, at 320, "the statutory scheme permits a party to effectively retard the alienability of real property without any prior judicial review."
In Israelson v Bradley ( 308 NY 511, 516), the Court observed that with a notice of pendency a plaintiff who has an interest in real property has received from the State:
an extraordinary privilege which . . . upon the mere filing of the notice of a pendency of action, a summons and a complaint and strict compliance with the requirements of section 120 [of the Civil Practice Act; now codified in CPLR §§ 6501, 6511 and 6512] is required. Proper administration of the law by the courts requires promptness on the part of a litigant so favored and that he accept the shield which has been given him upon the terms imposed and that he not be permitted to so use the privilege granted that it becomes a sword usable against the owner or possessor of realty. If the terms imposed are not met, the privilege is at an end. [ Emphasis added]
Article 65 of the CPLR outlines notice of pendency procedures. The Court, in Da Silva v Musso ( 76 NY2d 436, 442), held that "the specific statutorily prescribed mechanisms for implementing this provisional remedy . . . were designed with a view toward balancing the interests of the claimant in the preservation of the status quo against the equally legitimate interests of the property owner in the marketability of his title." The Court of Appeals, quoted Professor Siegel, in holding that "[t]he ability to file a notice of pendency is a privilege that can be lost if abused' (Siegel, New York Practice § 336, at 512)." ( In Re Sakow, 97 NY2d 436, 441).
Further, the Sakow Court, at 442, instructed: A notice of pendency is valid for three years from the date of filing and may be extended for additional three-year periods upon a showing of good cause (see CPLR 6513). The extension, however, must be requested prior to the expiration of the prior notice (see id.). This is an exacting rule; a "notice of pendency that has expired without extension is a nullity" (13 Weinstein-Korn-Miller, NY Civ Prac ¶ 6513.04 [2000]; see Polish Natl. Alliance of Brooklyn v White Eagle Hall Co., 98 AD2d 400, 405 [1983]; Robbins v Goldstein, 32 AD2d 1047 [1969]).
Therefore, the Court cannot extend a notice of pendency which expired almost six years ago. It has been a nullity since September 10, 2002. Plaintiffs' motion is denied.
Conclusion
Accordingly, it is
ORDERED that the motion of plaintiffs, NYCTL 1998-1 TRUST AND THE BANK OF NEW YORK AS COLLATERAL AGENT AND CUSTODIAN, for an order to extend the September 10, 1999 notice of pendency in the instant tax lien foreclosure action for the premises located at 5805 Fort Hamilton Parkway (Block 5721, Lot 37, County of Kings) is denied.
This constitutes the Decision and Order of the Court.