Opinion
2002-09485.
December 1, 2003.
In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Suffolk County (Costello, J.), dated September 4, 2002, which denied its motion pursuant to CPLR 6512 and 6514(a) to cancel the notice of pendency filed on January 17, 2002.
Eugene L. DeNicola, Sayville, N.Y. (Andrea DeNicola of counsel), for appellant.
Sarisohn, Sarisohn, Carner, LeBow, Braun, Shiebler Tarantino, Commack, N.Y. (Andrew G. Tarantino, Jr., and Marvin Waxner of counsel), for respondent.
Before: ROBERT W. SCHMIDT, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the notice of pendency filed on January 17, 2002, is cancelled.
It is undisputed that in a prior action regarding the same contract, the complaint was dismissed as against the defendant herein on the basis of improper service of process, and the notice of pendency filed in relation to that action was cancelled. Thus, the plaintiff failed in the prior action to strictly comply with the requirement of CPLR 6512 that service of the summons be effected within 30 days of the filing of the notice of pendency. In light of that failure to comply with CPLR 6512, the second notice of pendency, filed on January 17, 2002, in the instant action, cannot be permitted to stand ( see Weiner v. MKVII-Westchester, 292 A.D.2d 597, 599; Chiulli v. Cross Westchester Dev. Corp., 134 A.D.2d 559; Gargano v. Rubin, 130 A.D.2d 709, 710; Holiday Investors Corp. v. Breger Co., 112 A.D.2d 979).
SANTUCCI, J.P., LUCIANO, SCHMIDT and ADAMS, JJ., concur.
DECISION ORDER ON MOTION
Cross motion by the appellant on an appeal from an order of the Supreme Court, Suffolk County, dated September 4, 2002, inter alia, to strike the respondent's brief on the ground that it refers to material dehors the record. By decision and order on motion of this court dated June 13, 2003, that branch of the cross motion was held in abeyance and referred to the Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the cross motion, the papers filed in opposition thereto, and upon the submission of the appeal, it is
ORDERED that the branch of the cross motion which is to strike the respondent's brief is granted to the extent that footnotes 1, 5, 8, and 14, and the final phrase on page 3, commencing with the word "which," and ending with the word "property," are stricken, and that branch of the cross motion is otherwise denied.
SANTUCCI, J.P., LUCIANO, SCHMIDT and ADAMS, JJ., concur.