Gneco v. 610 West Realty LLC

Full title: JOSE GNECO, DOMINGA GNECO and SHEENA RALISTA GNECO, Plaintiffs, v. 610…

Court: Supreme Court of the State of New York, New York County

Date published: Sep 25, 2008

2008 N.Y. Slip Op. 32606 (N.Y. Sup. Ct. 2008)

Opinion

No. 0107660/2008.

September 25, 2008.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] WALTER B. TOLUB, J.

This is Defendant's motion to cancel the Notice of Pendency filed by Plaintiffs and for an order requiring Plaintiffs to post a bond as security for costs.

Facts

Defendant 610 West Realty LLC (610 West) is a limited liability company organized in the State of New York. 610 West promulgated a plan for condominium ownership (Plan) for Riverbridge Court Condominium, located at 603 West 148^th Street and 608 West 149^th Street, New York, New York.

On or about April 18, 2006, 610 West, as seller and Plaintiffs, as purchasers, entered into a purchase agreement (Agreement) in which Plaintiffs agreed to purchase unit 8C at the Riverbridge Condominium. A closing date was set and Plaintiffs made a down payment of $70,969 which was placed in escrow along with interest accrued and accruing. Plaintiffs claim that they decided not to purchase the apartment because, on the closing date, the apartment had as many as 13 itemized deficiencies.

Plaintiffs argue that the apartment's deficiencies constitute a material breach under the Agreement. Plaintiffs commenced the underlying action, not for specific performance, but for the return of their security deposit and filed a purchaser's lien on the property. By this motion Defendant seeks to cancel the Notice of Pendency and seeks an order requiring the Plaintiffs to post a security for costs.

Discussion

CPLR § 6515 provides that:

In any action other than to foreclose a mortgage or for partition or dower, the court, upon motion of any person aggrieved, may direct any county clerk to cancel a notice of pendency, upon such terms as are just, whether or not the judgment demanded would affect specific real property, if the moving party shall give an undertaking in an amount to be fixed by the court, and if:

1. The court finds that adequate relief can be secured to the plaintiff by the giving of such an undertaking; or

2. In such action, the plaintiff fails to give an undertaking, in an amount to be fixed by the court, that the plaintiff will indemnify the moving party for the damages he may incur of the notice is not cancelled.

(CPLR § 6515)

A notice of Pendency is the only provisional remedy which a plaintiff may employ without posting an undertaking to indemnify the defendant in the event that plaintiff loses the action. This of course lends itself to possible abuse at the hand of plaintiffs who may seek to tie up the defendant's property during a lawsuit (McKinney's Consolidated Laws of New York Annotated, § 6515 [C6515:1], p. 481). Upon the recommendation of the Judicial Conference, this section was amended to provide that in any real property action (except to foreclose a mortgage or for partition or dower), the court may compel the plaintiff to post an undertaking to indemnify the defendant. Similarly, the statute also provides that the court may require the Defendant to post an undertaking to obtain such relief (Id.).

Here, the court may either require Plaintiffs to post an undertaking and keep the Notice of Pendency intact or the court may require the Defendant to post an undertaking and cancel the Notice of Pendency. Since Defendant has offered to post a bond and since Plaintiffs have no objection to Defendant posting an undertaking, the Defendant, shall submit $70,969.00 plus any accrued interest as an undertaking and, upon such posting, the Notice of Pendency shall be vacated.

Additionally, Defendants seek an order requiring the Plaintiffs to post security for costs pursuant to CPLR § 8501. CPLR § 8501(a) provides that the court ". . .shall order security for costs to be given by the plaintiffs where none of them is a domestic corporation, a foreign corporation licensed to do business in the state or a resident of the state when the motion is made." The language in the statute makes security for costs mandatory where an individual plaintiff is not a resident of the state. It follows that Plaintiffs are directed to post a security in the amount and manner directed below.

Accordingly, it is

ORDERED that Defendant shall post a bond in the amount of the security deposit made by Plaintiffs plus all accrued interest from the date of the deposit; and it is further

ORDERED that upon said posting of the bond, the Notice of Pendency shall be cancelled; and it is further

ORDERED that within 30 days from the date of service of a copy of this order with notice of entry, the Plaintiffs pay to the court the sum of $500.00 to be applied to the payment of costs, if any, awarded against the Plaintiffs; and it is further

ORDERED that, within 30 days from the date of service of a copy of this order with notice of entry, plaintiff shall serve upon the attorneys for the defendant a written notice of the payment or of the filing of such undertaking; and it is further

ORDERED that all further proceedings, except to review this order, are stayed 30 days from the date of service of a copy of this order with notice of entry.

Counsel for the parties are to appear in room 335 at 60 Centre Street at 11:00am on November 7, 2008 for a Preliminary Conference.

This memorandum opinion constitutes the decision and order of the Court.