Although the plaintiff could not part with title to the real property and reserve to herself title to the easements of light, air and access, yet she could reserve to herself the damages which these easements had sustained, and if her grantee collected such damages he would hold them in trust for her. ( Western Union Telegraph Co. v. Shepard, 169 N.Y. 170.) An action to enforce such a reservation and to compel a grantee to execute a release to the railroad company so that the grantor may receive the damages awarded or agreed upon is an action affecting real property and one in which a lis pendens may be properly filed. ( Schomacker v. Michaels, 189 N.Y. 61.) When that case was before us ( 117 App. Div. 125) we were of the opinion that the action was a mere personal one to enforce a trust, and that the filing of a lis pendens was improper.
Since the purpose of the action is one enumerated in section 120 of the Civil Practice Act, the notice of pendency may not be canceled for the reason that a court, looking into the future, may conclude that plaintiff will not on the merits finally prevail. So long as this action is pending, the notice may not be canceled. ( Mills v. Bliss, 55 N.Y. 139; Schomacker v. Michaels, 189 N.Y. 61, 65; Beman v. Todd, 124 N.Y. 114; St. Regis Paper Co. v. Santa Clara Lumber Co., 62 App. Div. 538.) The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division. The question certified should be answered in the negative.
The agreement, therefore, bore such a relation to the subject of the grant, so limited the extent of the grant, and so affected the beneficial use and enjoyment of the thing granted as to be binding upon subsequent grantees. That such an agreement affects the "title to, or the possession, use, or enjoyment of" the real property conveyed was explicitly decided in Schomacker v. Michaels ( 189 N.Y. 61). As between grantor and grantee, the thing itself was reserved. Because of a theoretical, technical difficulty, that could not be done at law, and so the naked legal title passed to the grantee, with the implied obligation to use it for the benefit of the grantor.
To our minds but one answer can be given to this question, and that is, that it is prevented by the express terms of the agreement. The learned Appellate Division appeared to have entertained the view that this question was settled by the case of Schomacker v. Michaels ( 189 N.Y. 61). We do not so understand that case.
"In entertaining a motion to cancel [a notice of pendency], the court essentially is limited to reviewing the pleading to ascertain whether the action falls within the scope of CPLR 6501" (5303 Realty Corp. v O & Y Equity Corp., 64 N.Y.2d 313, 320). "A reviewing court has the inherent power to vacate a notice of pendency that does not comport with CPLR 6501" (Whelan v Busiello, 219 A.D.3d at 779, citing Schomacker v Michaels, 189 NY 61, 64, and Delidimitropoulos v Karantinidis, 142 A.D.3d at 1039). Here, it is undisputed that Retamozzo did not file a complaint or a petition to support his filing of the subject notice of pendency.
"The usual object of filing a notice of lis pendens is to protect some right, title or interest claimed by a plaintiff in the lands of a defendant which might be lost under the recording acts in event of a transfer of the subject property by the defendant to a purchaser for value and without notice of the claim" ( Braunston v. Anchorage Woods, Inc., 10 N.Y.2d 302, 305, 222 N.Y.S.2d 316, 178 N.E.2d 717 ; see5303 Realty Corp. v. O & Y Equity Corp., 64 N.Y.2d 313, 321, 486 N.Y.S.2d 877, 476 N.E.2d 276 ). A reviewing court has the inherent power to vacate a notice of pendency that does not comport with CPLR 6501 (seeSchomacker v. Michaels, 189 N.Y. 61, 64, 81 N.E. 555 ; Delidimitropoulos v. Karantinidis, 142 A.D.3d at 1039, 38 N.Y.S.3d 36 ; Nastasi v. Nastasi, 26 A.D.3d 32, 36, 805 N.Y.S.2d 585 ). "When the court entertains a motion to cancel a notice of pendency in its inherent power to analyze whether the pleading complies with CPLR 6501, it neither assesses the likelihood of success on the merits nor considers material beyond the pleading itself" ( Nastasi v. Nastasi, 26 A.D.3d at 36, 805 N.Y.S.2d 585 ; seeDelidimitropoulos v. Karantinidis, 142 A.D.3d at 1039, 38 N.Y.S.3d 36 ; Ewart v. Ewart, 78 A.D.3d 992, 992–993, 912 N.Y.S.2d 265 ).
In our opinion, strict compliance with the statutory requirements is a condition precedent to a valid lis pendens ( Israelson v. Bradley, 308 N.Y. 511, 516; Lanzoff v. Bader, 13 A.D.2d 995, 996). The notice of pendency is effective only when it has been properly filed ( Schomacker v. Michaels, 189 N.Y. 61, 64). We are further of the opinion that the Ricks, by virtue of their contract to purchase into which they had entered prior to the filing of the lis pendens, are "persons aggrieved" within the meaning of the statute (former Civ. Prac. Act, § 123) and are entitled to the cancellation of the notice.
Order, entered on August 6, 1963, vacating lis pendens, unanimously reversed, on the law, with $20 costs and disbursements to the appellant, and motion by defendant to vacate lis pendens denied. Plaintiff seeks to declare null and void an agreement of easement affecting an alley one half owned by each party. Plaintiff may file a lis pendens under section 6501 N.Y.C.P.L.R. of the Civil Practice Law and Rules (formerly Civ. Prac. Act, § 120) because the action is brought to recover a judgment "affecting the title to, or the possession, use, or enjoyment of real property". (See Schomacker v. Michaels, 189 N.Y. 61, especially 64-65; Lafayette Forwarding Co. v. Rothbart Garage Operators, 205 App. Div. 247.) Braunston v. Anchorage Woods ( 10 N.Y.2d 302) is distinguishable in that it involved only a nuisance, that is, a remedy for tort. Thus, the issue there was unrelated to the title, possession, use or enjoyment of defendant's land, in the property sense of those terms. While in this case a trespass is involved contingently, the central issue is that involving a property interest, namely, an easement.
It is sufficient if it discloses that the action is one which "affects the title to property", and that question is "an entirely different one from whether the plaintiff can succeed in the action." ( Schomacker v. Michaels, 189 N.Y. 61, 65; 8 Carmody on New York Pleading and Practice, § 63; Small Realty Co. v. Strauss, 162 App. Div. 658, 659.) Lewis, P.J., Carswell, Johnston, Adel and Nolan, JJ., concur.
"As the interest, therefore, which the plaintiff asserts in the defendant's property is of a nature which would limit the use and prevent the enjoyment thereof in the manner in which the defendant has used or is attempting to use and enjoy it, the action is within the provisions of section 1670 of the Code of Civil Procedure, and it follows that the court has no power to cancel the lis pendens." In Schomacker v. Michaels ( 189 N.Y. 61) the facts were that plaintiff had sold certain premises, pending a suit for damages against certain railroad companies, and had reserved by the deed his claim for damages against the railroads for fee and rental damages resulting from the construction of the railroad. The grantee covenanted to allow the plaintiff to prosecute the suits in her name for the recovery of such damages and to execute any conveyances that might be presented to her by plaintiff, necessary to release her rights to the companies upon the settlement of the suits.