Deutsch v. GrunwaldDeutsch v. Grunwald
Ordered that the appeal from the decision is dismissed, as no аppeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
In May 2006 an action was commenced in the Supreme Court, Kings County, by the “Estate of Jesie Deutsch,” seeking, among other things, the imposition of a constructive trust upon certain real property. A notice of pendency was served and filed along with the summons and complaint. By order dated December 11, 2006, the Supreme Court granted a motion to dismiss the complaint without prejudice on the grounds that an estate is
On December 18, 2006 the administrator of the estate, the plaintiff Yehuda Deutsch, who had been identified in the initial сomplaint but was not named as a party, commenced this action in his own name, as the representative of the estate, making the same claims as were asserted in the prior action. At the same time, hе served and filed a second notice of pendency with respect to the same property. The defendants Pesy Grunwald, Cheskel Grunwald, Congregation Bnai Arugath, Habosem Monsey, Inc., and 456-458 Bedford Corp. (hereinafter collectively the defendants), moved, among other things, to cancel that notice of pendency on the ground that the notice of pendency in the prior action had been cancelled. The Suрreme Court denied that branch of the motion, and we affirm.
“[A] notice of pendency may not be filed in any action in which a previously filed notice of pendency affecting the same property had been cancelled or vacated or had expired or become ineffective” (
The defendants’ argument that the second notice of pendency must be vacated pursuant to Israelson v Bradley (308 NY 511 [1955]) is without merit. In Israelson, the Court of Appeals held that a plaintiff who had filed a notice of pendency with respect to an action in the County Court but then failed to serve the summons and complaint within the time required by the notice of pendency statute could not maintain a second notice of pendency with respect to a subsequent action commenced in the Supreme Court for the same relief. As we have since applied it, Israelson stands for the proposition that “if the terms of the statute are not met, the privilegе has ended and a further grant of power to file a new notice for the same cause must be denied”
The situation presented here, however, is different. Here, there is no identity of plaintiffs as there was in Israelson, since the plaintiff here was not the plaintiff in the prior action, and, more importantly, the plaintiff here did not fail to serve the summons and complaint in the initial action in a timely fashion or otherwise fail to comply with the statutory requirements for filing a notice of pendency. The plaintiff‘s failure here simply involved naming the wrong party as a plaintiff in the initial action. Since that error does not go to the statutory requirements for the filing of a notice of pendency (see
Spolzino, J.P., Skelos and Chambers, JJ., concur.
Leventhal, J. (concurring in part and dissenting in part, and voting to dismiss the appeal from the decision and to reverse the order insofar as appealed from, on the law, and to grant the branch of the appellants’ motion which was to cancel the notice of pendency, with the following memorandum, in whiсh Santucci, J., joins): We respectfully disagree with the majority and find that the plaintiff should be barred from filing a second notice of pendency.
The “no second chance” rule first articulated in Israelson v Bradley (308 NY 511, 516-517 [1955]), and more recently reaffirmed in Matter of Sakow (97 NY2d 436, 442 [2002]), prohibits the filing of a second notice of pendency for the same property when the first notice of pendency was cancelled (see Chateau Rive Corp. v Riverview Partners, LP, 18 AD3d 492 [2005]). This rule was codified by the Legislature in
This “no second chance” rule exists because a notice of pendency is a unique provisional rеmedy that has a powerful effect on the alienability of real property (see Matter of Sakow, 97 NY2d at 441, citing Israelson v Bradley, 308 NY at 516). It is an extraordinary privilege because of the relative ease by which it can be obtained. Unlike other provisionаl remedies, a plaintiff need not demonstrate a likelihood of success on the merits in order to file a notice of pendency or obtain prior judicial review: “Basically, a plaintiff can cloud a defendant‘s title merely by serving a summons and filing a proper complaint and notice of pendency stating the names of the parties, the object of the action, and a description of the property (
Accordingly, strict compliancе with the statute is required (see Israelson v Bradley, 308 NY at 516). The complaint filed with the notice of pendency must be adequate unto itself. If the complaint is not adequate, the notice of pendency must be cancelled (see Chateau Rive Corp. v Riverview Partners, LP, 18 AD3d at 493). A subsequеnt amended complaint cannot be used to justify an earlier notice of pendency (see 5303 Realty Corp. v O & Y Equity Corp., 64 NY2d at 320).
Here, the majority holds that the “no second chance” rule applies only when the notice of pendеncy fails to comply with the filing and service requirements of CPLR article 65. However, we do not believe that the rule articulated by the Court of Appeals and the statute enacted by the Legislature (see
The majority also distinguishes Israelson in finding that the two complaints at issue here were not in the same action and were not brought by the same parties. However, the first complaint and notice of pendency were brought under the name of the “Estate of Jesie Deutsch,” and the complaint set forth 11 causes of action. The first paragraph of the first complaint alleged that Yehuda Deutsch was appointed administrator of the Estate of Jesie Deutsch. The first complaint is signed and verified by Yehuda Deutsch as administrator of the estate of Jesie Deutsch. The first notice of pendency, with a caption that read the “Estate of Jesie Deutsch” was placed on the Bedford property and was signed by Yehuda Deutsch as “Administrator of the Estate of Jesie Deutsch.” The seсond complaint and notice of pendency were brought under the name of “Yehuda Deutsch, as Administrator of the Estate of Jesie Deutsch” and the complaint sets forth the same causes of action as in thе first complaint. The second notice of pendency was placed on the same property.
In applying a “substance over form” analysis, the subsequent complaint and notice of pendency аre the same as the first (see Weiner v MKVII-Westchester, 292 AD2d at 600; Chiulli v Cross Westchester Dev. Corp., 134 AD2d at 159). The substance in these two complaints is the same. The identical claims and theories are being asserted. The same relief is sought. The parties are the same, since Yehuda Dеutsch pleaded in the first complaint that he was the administrator of the estate and signed the complaint and verification in that capacity. The only difference between the two complaints is the cаption. Since the two complaints are identical, they should be treated as one action for the purposes of
Accordingly, we respectfully concur in part and dissent in part, and vote to dismiss the appeal from the decision and to reverse the order insofar as appealed from, and grant that branch of the motion which was to cancel the notice of pendency.