Opinion
Argued March 6, 2000.
April 20, 2000.
In an action, inter alia, to quiet title to real property and to set aside a deed, (1) all of the defendants except Richard J. Novak, Ltd., and Richard J. Novak appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Henry, J.), dated March 6, 1998, as denied their motion to cancel the notice of pendency, and (2) the plaintiff appeals from stated portions of an order of the same court, dated October 5, 1998, and all of the defendants except Richard J. Novak, Ltd., and Richard J. Novak cross-appeal, as limited by their brief, from so much of the order as denied their motion for summary judgment dismissing the second cause of action insofar as asserted against them and the first cause of action insofar as it was purportedly asserted against them.
John W. Dougherty, Garden City, N.Y., for appellant-respondent.
Jeffrey S. Greene, P.C., White Plains, N.Y. (David W. Jedell of counsel), for respondents-appellants.
GUY JAMES MANGANO, P.J., LAWRENCE J. BRACKEN, LEO F. McGINITY, DANIEL F. LUCIANO, JJ.
DECISION ORDER
ORDERED that the plaintiff's appeal from the order dated October 5, 1998, is dismissed, for failure to perfect the same in accordance with the rules of this court (see, 22 NYCRR 670.8[e]); and it is further,
ORDERED that the cross appeal from so much of the order dated October 5, 1998, as denied that branch of the respondents-appellants' motion which was for summary judgment dismissing the first cause of action is dismissed; and it is further,
ORDERED that the order dated March 6, 1998, is affirmed insofar as appealed from; and it is further,
ORDERED that the order dated October 5, 1998, is affirmed insofar as reviewed; and it is further,
ORDERED that the plaintiff is awarded one bill of costs.
The first cause of action in the second amended complaint was asserted only against the defendants Richard J. Novak, Ltd., and Richard J. Novak, and not the respondents-appellants. Accordingly, the respondents-appellants lacked standing to seek summary judgment dismissing that cause of action (cf., Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 773 ).
The Supreme Court properly denied that branch of the respondents-appellants' motion which was for summary judgment dismissing the second cause of action asserted in the second amended complaint, since there are issues of fact as to whether the respondents-appellants possessed notice that the plaintiff retained an interest in the subject property, or whether the respondents-appellants had knowledge of facts that would have led a reasonably prudent person to make further inquiries concerning the property (see, CPLR 3212[b]; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562 ; see also, Yen-Te Hsueh Chen v. Geranium Dev. Corp., 243 A.D.2d 708 ).
Since summary judgment was properly denied and the respondents-appellants did not otherwise demonstrate entitlement to cancellation of the notice of pendency (see, CPLR 6514), the court properly denied their motion to cancel the notice of pendency.