Opinion
11088/2003
01-23-2019
25-35 BRIDGE STREET LLC, Plaintiff, v. EXCEL AUTOMOTIVE TECH CENTER INC., Defendant.
Attorneys for Plaintiff, DUNNINGTON, BARTHOLOW & MILLER LLP, 250 Park Avenue, Suite 1103, New York, NY 10177, Attn: Eva Adaszko, Esq., CLARK HILL, PLC, 151 S. Old Woodward, Suite 200, Birmingham, Michigan 48009, Attn: Jordan Bolton, Esq. Attorneys for Defendant, ROSENBERG & ESTES, P.C., 733 Third Avenue, New York, NY 10017, Attn: Normal Flitt, Esq.
Attorneys for Plaintiff, DUNNINGTON, BARTHOLOW & MILLER LLP, 250 Park Avenue, Suite 1103, New York, NY 10177, Attn: Eva Adaszko, Esq., CLARK HILL, PLC, 151 S. Old Woodward, Suite 200, Birmingham, Michigan 48009, Attn: Jordan Bolton, Esq.
Attorneys for Defendant, ROSENBERG & ESTES, P.C., 733 Third Avenue, New York, NY 10017, Attn: Normal Flitt, Esq.
Katherine A. Levine, J.
By Motion to Extend the Notice of Pendency dated December 6, 2018, defendant Excel Automotive Tech Center, Inc. ("defendant" or "Excel") seeks an order extending a notice of pendency, due to expire on January 28, 2019, for another three years against the subject property located at 25-35 Bridge Street. Oral argument was held before this Court on January 16, 2019, wherein plaintiff 25-35 Bridge Street LLC ("Bridge Street" or "plaintiff") opposed the extension. For the reasons set forth herein, the motion is denied.
This action arises from a disputed option to purchase ("option") contained in a commercial lease ("lease") which Excel admittedly failed to exercise in a timely manner. The action was commenced in March 2003 upon the complaint of then plaintiff Joseph Vitarelli ("Vitarelli"). Excel filed its first notice of pendency against the subject property on October 22, 2003, under the caption of the original lawsuit - Joseph Vitarelli v. Excel. While the underlying action was being litigated, the initial notice of pendency was extended every three years by Order of the Court until it expired on October 21, 2015. At some point in 2014 this matter came before the instant Court for a non-jury trial on a myriad of complicated issues and the Court rendered a decision and order on October 29, 2018.
Of particular pertinence to the instant matter is the Order of the Hon. David L Schmidt, dated September 11, 2011, which emanated from an Order to Show Cause ("OSC") brought by Excel based upon Vitarelli's conveyance of the property to his daughters by three separate deeds in December 29, 2009, allegedly without notice to defendants, and Vitarelli's death on October 15, 2010. Excel claims that these events resulted in it "having no direction as to the party for whom rent should be paid for the property." It also contends that it brought the OSC to join the LLC as a plaintiff "and effectively amend the claims and counterclaims in this action to reflect the present ownership situation and Excel's rights" as against the new owner . Justice Schmidt ordered that Bridge Street LLC be substituted as the plaintiff in place of the deceased Vitarelli; that Vitarelli's estate had no further claims against the property; and that Excel shall remain in possession of the property as a month to month tenant of the LLC subject to the provisions of the expired lease through the final determination of this Supreme Court action. Both parties signed off on the stipulation.
Reply Affirmation of Norman Flitt in Further Support of Order to Extend Notice of Pendency
Id.
By Order dated October 11, 2012, Justice Schmidt extended the Notice of Pendency for another three year period and directed that the Clerk of the Court record and index the Notice against the premises and "the present parties to this action." The caption of this Order was changed to reflect the substitution of 23-35 Bridge Street LLC in place of Vitarelli as the plaintiff. This Order expired on October 10, 2015. For some inexplicable reason, defendant failed to seek an extension of this Order prior to its expiration and the Order expired on October 10, 2015. It was not until January 29, 2016 that defendant filed a "New" Notice of Pendency which is the subject of the instant motion.
Pursuant to CPLR § 6513 a notice of pendency shall be effective for a period of three years from the date of filing and the movant must move for an extension of the notice of pendency prior to its expiration. Both parties agree that an extension of the notice of pendency must be executed prior to the expiration of the three year period and that "[a] lapsed notice of pendency may not be revived. Ampul Elec. Inc. V. Village of Port Chester , 96 AD3d 790, 791 (2d Dept. 2012). Alexander, Practice Commentaries, CPLR § 6513 at 512. Therefore, a party's failure to obtain the extension will invalidate the effectiveness of the notice of pendency. Alexander, Practice Commentaries , supra . This is an exacting rule; a notice of pendency that has expired without extension is a nullity." Sudit v. Labin , 148 AD3d 1077-78 (2d Dept 2017). This statute must be strictly complied with "as a counterbalance to the ease with which a party may obtain a notice of pendency." In re Sakow. 97 NY2d 436, 441 (2002) citing to Israelson v. Bradley , 308 NY 511, 516 (1955). Neither party claims that the notice of pendency which expired in October 2015 can be resuscitated.
Bridge Street claims that the so called "new" or "second" notice of pendency" filed on January 29, 2016, is void abinitio because defendant is attempting to obtain a "second chance" at curing its failure to seek an extension of the notice of pendency that expired in October 2015. It points to CPLR § 6516 (c), which states that except as provided in subdivision (a) (which concerns a foreclosure action that is inapplicable to the instant matter) "a notice of pendency may not be filed in any action in which a previously filed notice of pendency affecting the same property has been cancelled...or had expired ..." Defendant responds that it may file a successive notice of pendency because it comes within the exception listed in CPLR § 6516 (a) since the "new" notice of pendency reflects the new terms and conditions imposed upon the case by Justice Schmidt's September 11, 2011 order - namely the substitution of the LLC in place of Vitarelli as the plaintiff in the action; the extension of the Excel's counterclaim to the LLC, and the order permitting Excel to remain in occupancy as a month to month tenant. Bridge Street counters that this is not a "new" notice of pendency since plaintiff did not file a new complaint or raise any new claim or cause of action, and the Order of Justice Schmidt merely substituted one plaintiff for another and recognized that all claims raised by or against Vitarelli transferred over to the LLC.
It is well established that the ability to file a notice of pendency is "a privilege that can be lost if abused" (Siegel, NY Practice, § 336 at 512) and that a party whose notice of pendency has been cancelled or expired cannot file another notice of pendency for the same cause of action in Supreme Court. In re Sakow , supra , 97 NY2d at 442-43 ; Israelson , supra ; Manning v. Lavoie , 2013 NY Slip. Op. 32928U, 2013 NY Misc. LEXIS 5356 (Sup. Ct., Suffolk Co. 2013). The addition of or substitution of new parties to the same action is "more a change of form than of substance" that does warrant the filing of a successive notice of pendency." Weiner v. Mkvii-Westchester , 292 AD2d 597, (2d Dept 2002) ; Chiulli v. Cross Westchester Dev. Corp. 134 AD2d 559 (2d Dept. 1987) (the action underlying the second notice of pendency proceeded upon the same contract and theory as the cause of action underlying the first notice of pendency and the second notice of pendency therefore had to be canceled. See , Tavitian v. Tavitian , 83 AD3d 1045 (2d Dept. 2011).
Although not raised in oral arguments, this Court notes that the plain wording of CPLR 6516 appears to impose an absolute bar against a "second filing" where a notice of pendency has expired or been cancelled unless the exception contained in 6516(a) applies; i.e. foreclosure actions brought pursuant to RPAPL § 1331, which has no applicability to the instant matter. See, Alexander, Practice Commentaries to § 6516 at 566-67. See, Marci v. Swiers , 29 Misc 3d 212, 216-17 (Sup. Ct. Saratoga Co. 2010) ("An expired notice of pendency may not be refiled on the same cause of action or claim (Mtr. Of Sakow , supra , 97 NY2d at 443 ) with the statutory exception that a successive notice of pendency may be filed only in mortgage foreclosure actions after the initial notice expires"). However, regardless of whether § 6516 imposes an absolute bar, Bridge Street correctly argues that the time in which Excel should have filed a new notice of pendency has long since passed. Justice Schmidt imposed the new terms and conditions listed above upon the case by Order dated September 11, 2011 and incorporated the change of plaintiff from Vitarelli to Bridge LLC in the caption of his October 11, 2012 extending the "original" notice of pendency another three years. Therefore, the so called "new" notice of pendency filed by defendants in January 2016 was not new since the change in caption had already been memorialized in the October 11, 2012 Order extending the notice of pendency.
In sum, this Court is without jurisdiction to extend the new notice of pendency as it is void abinitio and the Motion is Denied.
This constitutes the Decision and Order of the Court.