Elghanayan v. Elghanayan

Jun 28, 1984
Versions:102 A.D.2d 803
477 N.Y.S.2d 163
1984 N.Y. App. Div. LEXIS 18963

Order entered January 10,1984 in Supreme Court, New York County (Ira Gammerman, J.), granting defendants’ motion to dismiss two causes of action and cancel a notice of pendency is unanimously reversed, on the law, the second and tenth causes of action are restored, and the lis pendens is reinstated, with costs. H Plaintiff alleges that certain Manhattan real estate was purchased jointly by her and her husband, but through fraudulent conversion he has transferred the property to a family corporation and is seeking to sell it. Plaintiff filed a notice of pendency and her complaint seeks (among other things) to impose a constructive trust and a determination of her claim to the property. She alleges the requisite fraud on the part of her husband entitling her to a lis pendens until a trial may be had upon the merits. (5303 Realty Corp. vO &Y Equity Corp., 98 AD2d 632,633.) While apparently there is a London divorce suit in progress, this action is solely concerned with the Manhattan property and defendant’s alleged fraudulent conversion of it. Although the court below relied upon Chambi v Navarro, Vives & Cia (95 AD2d 667) in canceling the notice of pendency, it did not have available to it our decision in 5303 Realty Corp. vO &Y Equity Corp. (98 AD2d 632, supra). *804Under the circumstances, we find the lis pendens appropriate and the second and tenth causes of action to be viable. (5303 Realty Corp. v O & Y Equity Corp., supra; Weingarten v Minskoff, 204 App Div 750.) Concur — Sullivan, J. P., Carro, Silverman and Milonas, JJ.