Opinion
04-20-2016
Yehuda DEUTSCH, etc., respondent, v. Cheskel GRUNWALD, et al., appellants.
Heller, Horowitz & Feit, P.C., New York, N.Y. (Eli Feit and Stuart A. Blander of counsel), for appellants. Tenenbaum Berger & Shivers LLP, Brooklyn, N.Y. (Michael Cohen of counsel), for respondent.
Heller, Horowitz & Feit, P.C., New York, N.Y. (Eli Feit and Stuart A. Blander of counsel), for appellants. Tenenbaum Berger & Shivers LLP, Brooklyn, N.Y. (Michael Cohen of counsel), for respondent.
In an action, inter alia, to impose a constructive trust, the defendants appeal from an order of the Supreme Court, Kings County (Jacobson, J.), dated December 22, 2015, which granted the plaintiff's motion to extend the notice of pendency and denied their cross motion to vacate the notice of pendency.
ORDERED that the order is modified, on the law and in the exercise of discretion, (1) by deleting the provision thereof granting the plaintiff's motion to extend the notice of pendency, and substituting therefor a provision denying the motion, and (2) by adding to the provision thereof denying the defendants' cross motion to vacate the notice of pendency the words "as academic"; as so modified, the order is affirmed, with costs to the defendants.
In 2006, the plaintiff commenced this action, inter alia, to impose a constructive trust. After several delays and two extensions of the notice of pendency, in November 2015, the plaintiff moved to extend the notice of pendency a third time. The defendants opposed the motion and cross-moved to vacate the notice of pendency. The Supreme Court granted the plaintiff's motion and denied the defendants' cross motion. We modify.
"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" (Petervary v. Bubnis, 30 A.D.3d 498, 499, 819 N.Y.S.2d 267 ; see CPLR 6513 ; Matter of Sakow, 97 N.Y.2d 436, 442, 741 N.Y.S.2d 175, 767 N.E.2d 666 ). Here, the plaintiff failed to establish good cause. In this regard, the plaintiff failed to sufficiently explain the period of inactivity of more than one year prior to the filing of his motion to extend the notice of pendency. Under these circumstances, the Supreme Court should have denied the plaintiff's motion (see Petervary v. Bubnis, 30 A.D.3d at 499, 819 N.Y.S.2d 267 ; Hall v. Piazza, 260 A.D.2d 350, 687 N.Y.S.2d 664 ).
In light of the foregoing, the defendants' cross motion to vacate the notice of pendency should have been denied as academic, as the notice of pendency had expired and was a nullity (see Matter of Sakow, 97 N.Y.2d at 442, 741 N.Y.S.2d 175, 767 N.E.2d 666 ).
MASTRO, J.P., DICKERSON, HALL and SGROI, JJ., concur.