From Casetext: Smarter Legal Research

Varon v. Annino

Appellate Division of the Supreme Court of New York, Second Department
Feb 4, 1991
170 A.D.2d 445 (N.Y. App. Div. 1991)

Opinion

February 4, 1991

Appeal from the Supreme Court, Queens County (Katz, J.).


Ordered that the order is reversed, on the law, with one bill of costs, and the motion for summary judgment is granted.

The defendant Doris Ciervo was the owner of property located in Queens. On February 24, 1986, she contracted with the defendant Gary Annino to sell the property to him. Three days later on February 27, 1986, she contracted with the plaintiff Esta Varon to sell the same property to her. Neither contract was recorded.

In a separate action, the plaintiff sued Ciervo, seeking, inter alia, specific performance of her contract with Ciervo (see, Varon v Ciervo, 170 A.D.2d 446 [decided herewith]).

The plaintiff thereafter commenced this action against Gary Annino, George Annino (Gary Annino's father who rented the property from Doris Ciervo), Citibank, Doris Ciervo, and Joseph Turturo, the second mortgagee, in which she also sought, inter alia, specific performance of the contract between her and Ciervo.

Citibank and Gary Annino jointly moved for summary judgment in this action. The Supreme Court denied their motion. We reverse.

When two or more prospective buyers contract with a prospective seller for the sale of the same property, Real Property Law §§ 291 and 294 give priority to the prospective buyer whose conveyance or contract is first duly recorded. The record clearly establishes that the plaintiff executed her contract with Ciervo three days after the Annino contract was executed. As the subsequent purchaser, the plaintiff had to record her contract first in order to prevail. The plaintiff's contract, however, was never recorded, nor did the plaintiff ever acquire a deed to the property. Annino recorded his deed on September 4, 1986. Having failed to avail herself of either Real Property Law §§ 291 or 294, the plaintiff may not successfully claim that her filing of a notice of pendency serves as a substitute therefor. Such notices have as their general object the preservation of existing property rights and do not affect the merits of those interests (see, La Marche v Rosenblum, 50 A.D.2d 636). Thompson, J.P., Brown, Kunzeman and Rosenblatt, JJ., concur.


Summaries of

Varon v. Annino

Appellate Division of the Supreme Court of New York, Second Department
Feb 4, 1991
170 A.D.2d 445 (N.Y. App. Div. 1991)
Case details for

Varon v. Annino

Case Details

Full title:ESTA VARON, Respondent, v. GARY ANNINO et al., Appellants, et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 4, 1991

Citations

170 A.D.2d 445 (N.Y. App. Div. 1991)
565 N.Y.S.2d 540

Citing Cases

Olmeda v. Correia

Its effect is to bind, as if they were parties to the action, all persons whose conveyance, contract or…

2386 Creston Ave. v. M-P-M

The purpose of the notice of pendency is "to afford constructive notice from the time of the filing so that…