Opinion
May 11, 1987
Appeal from the Supreme Court, Queens County (Levine, J.).
Ordered that the order is affirmed, with costs.
The complaint, which seeks to enforce provisions of a lease, plainly demands a judgment which would affect the title to, or the possession, use or enjoyment of, real property (see, CPLR 6501). Therefore, it justifies the filing of a notice of pendency by the plaintiff (see, 5303 Realty Corp. v. O Y Equity Corp., 64 N.Y.2d 313, 320). The likelihood of the plaintiff's success on the merits is irrelevant to determining the validity of the notice of pendency (see, 5303 Realty Corp. v. O Y Equity Corp., supra; Interboro Operating Corp. v. Commonwealth Sec. Mtge. Corp., 269 N.Y. 56, 59). Finally, the defendants' constitutional challenge to CPLR 6501 is not properly before this court inasmuch as the defendants failed to raise the issue before the court of first instance (see, Melahn v. Hearn, 60 N.Y.2d 944, 945) and failed to serve the Attorney-General with notice thereof (see, Roberts v. Gross, 100 A.D.2d 540, 541; Executive Law § 71; CPLR 1012). Bracken, J.P., Brown, Rubin and Spatt, JJ., concur.