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Kasan v. Perlin

January 30, 2009


The opinion of the court was delivered by: William R. LaMarca, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Requested Relief

Counsel for defendants, MARILYN S. PERLIN and ELISE KASAN, moves for an order, pursuant to CPLR §§6514 and 6515, canceling the plaintiff's notice of pendency, dated August 25, 2008, filed in the above captioned action. Counsel for plaintiff, GARY KASAN, opposes the motion, which is determined as follows:


Plaintiff claims an interest in real estate located at 60 Christopher Street, Woodbury, New York. The essence of the defendants' position is that the complaint fails to adequately state a claim for the imposition of a constructive trust upon real property, and that service of the complaint has not been made upon defendant PERLIN at her residence in Florida and, therefore, the notice of pendency has expired. The plaintiff counters that the allegation in the complaint alleging significant improvements to the real estate by him is adequate for the imposition of a trust, and that service was effectuated by affixing a copy of the complaint to the defendant's door in Florida and mailing a copy to her at that address. The defendant replies that her residence is in a gated community and that, according to the records maintained by the security personnel, the author of the affidavit of service was not at the premises on any of the dates claimed.

The record reflects that defendant, MARILYN S. PERLIN, purchased 60 Christopher Street, Woodbury, NY in 2003 for occupancy by her daughter, the defendant ELISE KASAN, and her two children. ELISE subsequently married plaintiff, GARY KASAN, who resided with her at the premises, although they are now estranged. According to the complaint, the defendants requested that plaintiff pay for improvements to the property and it is alleged that he expended $200,000.00 at their bidding. The complaint further alleges that ELISE KASAN was the beneficial owner of the property, and that title was in MARILYN S. PERLIN, as Trustee for the benefit of ELISE, in order to protect the property from claims against ELISE.

On or about August 18, 2008 , MARILYN S. PERLIN contracted to sell the home. Shortly thereafter, on or about August 25, 2008, plaintiff commenced the instant action in which he sought to impose a constructive trust upon the property based upon his alleged contributions to the property and allegations that he was promised, if he made the requested improvements to the property, that MARILYN S. PERLIN would hold title of the property for the benefit of ELISE KASAN, and the plaintiff, her husband, who would be the actual owners of the premises. Plaintiff alleges that defendants refused to honor the agreement, or to return his funds, and that defendants have breached a fiduciary obligation owed to him. He seeks to have the defendants decreed as trustees for the benefit of the plaintiff, and that they be directed to convey the property to the plaintiff in fee simple. A second cause of action sounding in agency and breach of a trust relationship is also asserted, which seeks the same relief. Simultaneously, plaintiff filed a Notice of Pendency against the subject property.

According to Mrs. PERLIN's affidavit and that of ELISE, at no time did plaintiff or ELISE ever have an ownership interest in the home. Nor was plaintiff ever asked to make purchases on defendants behalf or for the house. It appears that the home was purchased by Mrs. PERLIN for her daughter, ELISE, and her children from a previous marriage, who did not have the funds to purchase or maintain a residence. When she subsequently married plaintiff KASAN, he came to live with ELISE in the home, while PERLIN continued to pay the mortgage, real estate taxes and other living expenses. Both defendants assert that it is a complete fabrication that PERLIN ever agreed to hold title to the house for the benefit of ELISE and her husband, KASAN. Defendants state that the house is presently under contract for sale in the sum of $1,600,000.00 and that the closing on the sale of the property was scheduled for October 2008 but the existence of the notice of pendency is a cloud on title and has prevented the closing of the transaction. The application before the Court requests a cancellation of the notice of pendency, or, if it is permitted to remain, that it be conditioned upon the posting of a security bond in the amount of $1,000,000 for damages which may well follow the loss of the present purchaser. It is the defendant PERLIN's position that the notice of pendency filed by plaintiff is nothing more than an attempt to coerce her into paying money that she does not owe.

The Law

The authority and requirements for securing a valid notice of pendency against real estate are set forth in CPLR Article 65. CPLR § 6501 provides: "A notice of pendency may be filed in any action in a court of the state or of the United States in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property."

Once properly indexed, the notice acts as constructive notice to all subsequent purchasers or incumbrancers: "A person whose conveyance or incumbrance is recorded after the filing of the notice is bound by all proceedings taken in the action after such filing to the same extent as if he were a party"(CPLR 6501). It is this special consequence, resulting as a matter of law from the filing of the statutory notice of pendency which is the essence of the remedy afforded by the Legislature.

Critically, the statutory scheme permits a party to effectively retard the alienability of real property without any prior judicial review . . . To counterbalance the ease with which a party may hinder another's right to transfer property, this court has required strict compliance with the statutory procedural requirements . . . In entertaining a motion to cancel, the court is essentially limited to reviewing the pleading to ascertain whether the action falls within the scope of CPLR 6501 (citations omitted).

5303 Realty Corp. v O. & Y. Equity Corp., 64 NY2d 313, 486 NYS2d 877, 476 NE2d 276 (C.A.1984); see also, New York SMSA Limited Partnership d/b/a Verizon LLC., 8 Misc 3d ...

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