Opinion
2015-10-6
Michael I. KNOPF, et al., Plaintiffs–Appellants, v. Michael Hayden SANFORD, et al., Defendants–Respondents. [And Another Action].
Berry Law PLLC, New York (Eric W. Berry of counsel), for appellants. Katsky Korins LLP, New York (Adrienne B. Koch of counsel), for respondents.
Berry Law PLLC, New York (Eric W. Berry of counsel), for appellants. Katsky Korins LLP, New York (Adrienne B. Koch of counsel), for respondents.
GONZALEZ, P.J., SWEENY, RENWICK, SAXE, FEINMAN, JJ.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered December 24, 2014, which granted that part of defendants' motion to cancel certain notices of pendency, and sub silentio denied that part of defendants' motion for costs and sanctions, unanimously modified, on the law, to remand for further proceedings on defendants' motion for costs and sanctions, and otherwise affirmed, without costs.
Supreme Court had jurisdiction to cancel the notices of pendency. Although this Court previously extended the subject notices (110 A.D.3d 502, 972 N.Y.S.2d 893 [1st Dept.2013] ), this does not render them immune to subsequent motions to cancel pursuant to CPLR 6514 ( see e.g. Bowery Boy Realty, Inc. v. H.S.N. Realty Corp., 55 A.D.3d 766, 869 N.Y.S.2d 551 [2d Dept.2008], lv. denied11 N.Y.3d 715, 873 N.Y.S.2d 533, 901 N.E.2d 1287 [2009] ).
The notices of pendency were properly cancelled because plaintiffs failed to show that money damages would be inadequate ( see Hoffmann Invs. Corp. v. Yuval, 33 A.D.3d 511, 823 N.Y.S.2d 51 [1st Dept.2006] ). Whether defendants are able to pay such damages is irrelevant to the determination of whether they are the appropriate remedy ( see American Cities Power & Light Corp. v. Williams, 189 Misc. 829, 835–836, 69 N.Y.S.2d 197 [Sup.Ct., N.Y. County 1947] [“The adequacy of the legal remedy for damages does not depend on the collectibility of the claim”]; cf. Bertoni v. Catucci, 117 A.D.2d 892, 895, 498 N.Y.S.2d 902 [3d Dept.1986] ).
Furthermore, the cancellation of the notices of pendency was mandatory pursuant to CPLR 6514(a). CPLR 6514(a) provides, in relevant part, that “[t]he court, upon motion of any person aggrieved and upon such notice as it may require, shall direct any county clerk to cancel a notice of pendency, if service of a summons has not been completed within the time limited by section 6512.” CPLR 6512 provides that a notice of pendency is only effective if a summons is served upon the defendant within 30 days after filing. Here, plaintiffs failed to serve defendant Pursuit Holdings, LLC within this 30–day period. “Nail mail” substitute service was ineffective because that method of service is only appropriate for serving individuals, not corporate entities ( see Napic, N.V. v. Fverfa Invs., 193 A.D.2d 549, 597 N.Y.S.2d 707 [1st Dept.1993]; Lakeside Concrete Corp. v. Pine Hollow Bldg. Corp., 104 A.D.2d 551, 479 N.Y.S.2d 256 [2d Dept.1984], affd. 65 N.Y.2d 865, 493 N.Y.S.2d 309, 482 N.E.2d 1225 [1985] ).
Since defendants moved to cancel the notices of pendency pursuant to CPLR 6514, and not CPLR 6515, the posting of an undertaking was not required ( see Lessard Architectural Group, Inc., P.C. v. X & Y Dev. Group, LLC, 88 A.D.3d 768, 770, 930 N.Y.S.2d 652 [2d Dept.2011]; Reingold v. Bowins, 34 A.D.3d 667, 668, 826 N.Y.S.2d 316 [2d Dept.2006] ).
The motion court did not address defendants' motions for costs and sanctions pursuant to CPLR 6514–c. Despite the lack of subjective bad faith on the part of plaintiffs, costs and expenses could be properly awarded pursuant to CPLR 6514(c)( see e.g. Lunney & Crocco v. Wolfe, 180 A.D.2d 472, 472, 579 N.Y.S.2d 388 [1st Dept.1992] [affirming CPLR 6514(c) “costs and expenses” award “despite the lack of subjective bad faith on the part of the petitioner”]; see also Josefsson v. Keller, 141 A.D.2d 700, 530 N.Y.S.2d 10 [2nd Dept.1988] [awarding defendants over $39,000 in “costs and expenses” under CPLR 6514(c) ]; Tucker v. Mashomack Fish and Game Preserve Club., 199 A.D.2d 957, 606 N.Y.S.2d 79 [3rd Dept.1993] [damages attributable to improperly filed lis pendens not reduced by higher sale price ultimately realized by vendor, after vacatur, than was expected under proposed sale aborted by filing] ). We therefore remand for a determination as to whether the award of costs and expenses are warranted under the circumstances of this case pursuant to CPLR 6514(c).
The Decision and Order of this Court entered herein on July 2, 2015 is hereby recalled and vacated ( see M–3726, 2015 WL 5797955 decided simultaneously herewith).