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Deutsch v. Grunwald

June 16, 2009

YEHUDA DEUTSCH, ETC., RESPONDENT,
v.
PESY GRUNWALD, ET AL., APPELLANTS, ET AL., DEFENDANTS.



In an action, inter alia, to impose a constructive trust, the defendants Pesy Grunwald, Cheskel Grunwald, Congregation Bnai Arugath, Habosem Monsey, Inc., and 456-458 Bedford Corp., appeal from (1) a decision of the Supreme Court, Kings County (Jacobson, J.), dated January 4, 2008, and (2) so much of an order of the same court dated March 27, 2008, as denied that branch of their motion which was to cancel a notice of pendency.

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 Official Reports.

ROBERT A. SPOLZINO, J.P., PETER B. SKELOS, FRED T. SANTUCCI, JOHN M. LEVENTHAL and CHERYL E. CHAMBERS, JJ.

(Index No. 38947/06)

DECISION & ORDER

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v Green Constr. Corp., 100 AD2d 509); 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 not a legal entity capable of suing or being sued (see Grosso v Estate of Gershenson, 33 AD3d 587) and that the nonresident attorney for the estate did not maintain an office within the State of New York (see Judiciary Law § 470). The notice of pendency was cancelled because the complaint was defective (see Chateau Rive Corp. v Riverview Partners, LP, 18 AD3d 492, 493).

On December 18, 2006, the administrator of the estate, the plaintiff Yehuda Deutsch, who had been identified in the initial complaint 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, he 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 Supreme 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" (CPLR 6516[c]). As a result, successive notices of pendency may not be filed in the same action (see Old World Custom Homes, Inc. v Crane, 33 AD3d 600, 601). Here, however, the first notice of pendency was filed in the prior action. Construing the language of the statute in accordance with its ordinary meaning, as we must (see People v Finnegan, 85 NY2d 53, 58, cert denied 516 US 919; see also Friedman v Connecticut Gen. Life Ins. Co., 9 NY3d 105, 115), it does not preclude the filing of a second notice of pendency in a different action.

The defendants' argument that the second notice of pendency must be vacated pursuant to Israelson v Bradley (308 NY 511) 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 privilege has ended and a further grant of power to file a new notice for the same cause must be denied" (Weiner v MKVII- Westchester, 292 AD2d 597, 599; see Mastronardi v Countywide Constr. Corp., 2 AD3d 416; Chiulli v Cross Westchester Dev. Corp., 134 AD2d 559; Holiday Invs. Corp. v Breger & Co., Inc., 112 AD2d 979; cf. Slutsky v Blooming Grove Inn, 147 AD2d 208).

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 CPLR 6511) and the circumstances of the second filing do not evince an attempt to abuse the privilege of filing a notice of pendency (see CPLR 6516[c]; Matter of Sakow, 97 NY2d 436, 441-442), the Supreme Court correctly denied the defendant's motion to vacate the notice of pendency filed in the second action. SPOLZINO, J.P., SKELOS and CHAMBERS, JJ., concur. LEVENTHAL, J., concurs in part and dissents in part, and votes 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 which SANTUCCI, J., joins:

We respectfully disagree with the majority and find that the plaintiff should be barred from filing a ...


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