Opinion
July 11, 1961
In an action to enjoin defendants, who are engaged in a real estate development and building project, from maintaining a nuisance upon their land; to enjoin them from continued trespass upon plaintiffs' adjoining land; to direct them to restore their land to a safe and secure condition so as to stop soil, rock, debris and water from being cast upon plaintiffs' land; to recover damages by reason of their trespass; and to impress a lien upon their land as security for their compliance with any order or judgment of the court, the parties cross-appeal as follows from an order of the Supreme Court, Nassau County, dated November 22, 1960, which granted the motion of the four defendants, Anchorage Woods, Inc., Russell Woods Construction Corporation, Donald Stein and Robert A. Bernhard, to cancel the lis pendens filed by plaintiffs against their land, the motion having been granted on condition that the defendant, Anchorage Woods, Inc., shall file an undertaking for $10,000 with sureties to be approved by the court: (1) The plaintiffs appeal from so much of said order as grants the said defendants' motion to cancel the lis pendens. (2) The said four defendants appeal from so much of such order as directs the filing of the undertaking as a condition to the cancellation of the lis pendens. They contend that their motion should have been granted unconditionally. On plaintiffs' appeal: Order, insofar as appealed from, reversed, with $10 costs and disbursements, and motion to cancel the lis pendens denied, without costs. On the appeal of the four defendants: Appeal dismissed, without costs, on the ground that it has become academic in view of the disposition of plaintiffs' appeal. In our opinion, it was an improvident exercise of discretion to grant the motion to cancel plaintiffs' lis pendens upon the filing of an undertaking by one of the defendants. Under the circumstances here, plaintiffs are entitled to file the lis pendens and an undertaking will not assure them adequate relief in the event that they should succeed in the action (Civ. Prac. Act, § 124; cf. Bienstock v. Nista Constr. Co., 225 App. Div. 534). Nolan, P.J., Beldock, Ughetta, Christ and Brennan, JJ., concur.