Opinion
March 8, 1971
In an action to foreclose a mortgage on real property, the appeal is from two orders of the Supreme Court, Kings County, both dated September 14, 1970, (1) one denying plaintiff's motion, and a cross motion, for summary judgment and (2) the other granting plaintiff's motion for reargument and thereupon, inter alia, granting summary judgment to plaintiff, subject to certain conditions. Appeals dismissed, without costs, insofar as they were purportedly taken by defendant Frances Goldstein. She died before the making of the orders appealed from and there has been no substitution of parties in her place. Appeal from the original order dismissed as academic. That order was superseded by the order granting reargument. Order granting reargument and summary judgment affirmed. Respondent is awarded a single bill of $10 costs and disbursements against appellants Paul Nelson, Seymour Kaplan and Leonard Kaplan, to cover the appeals from both orders. In our opinion, the previous cancellation of the original lis pendens filed by plaintiff (see Robbins v. Goldstein, 32 A.D.2d 1047) did not make it impossible for him to meet the requirement of section 1331 Real Prop. Acts. of the Real Property Actions and Proceedings Law that in an action to foreclose a real property mortgage a lis pendens must be filed at least 20 days before final judgment of foreclosure and sale is rendered. Despite that cancellation, plaintiff can comply with section 1331 by timely filing a new lis pendens containing the details required by that section (see Brandow v. Vroman, 22 Misc. 370, revd. on another ground 29 App. Div. 597; Manhattan Life Ins. Co. v. Hall, N.Y.L.J., Mar. 2, 1970, p. 27, col. 2). Israelson v. Bradley ( 308 N.Y. 511), Lanzoff v. Bader ( 13 A.D.2d 995) and Cohen v. Ratkowsky ( 43 App. Div. 196), which held that a second lis pendens may not be filed after the original one has been canceled, are distinguishable and not here controlling, since (a) they were not mortgage foreclosure actions (in which the filing of a lis pendens is an essential prerequisite to the entry of final judgment), but other types of actions in which a lis pendens is merely an added special privilege, so that its filing or nonfiling does not affect the cause of action, and (b) the clear intent of those decisions (expressed in Israelson, supra, and the analogous case of Cohen v. Biber, 123 App. Div. 528) was not to destroy the cause of action by forbidding the filing of a successive lis pendens, but merely to restrict the added special privilege granted to the plaintiff by CPLR 6501 and its predecessor statutes. Munder, Acting P.J., Martuscello, Latham, Shapiro and Benjamin, JJ., concur.