Israelson v. Bradley

In an action for specific performance of a contract for the sale of real property, the appeal is from an order denying a motion to cancel a notice of pendency of action. Order affirmed, with $10 costs and disbursements. No opinion. Adel, Acting P. J., Wenzel and Schmidt, JJ., concur. Beldoek, J., with whom Murphy, J., concurs, dissents and votes to reverse the order and to grant the motion, with the following memorandum: Where a notice of pendency is filed before the commencement of the action and process is not thereafter served within the time limited by section 120 of the Civil Practice Act, the filing of a successive notice of pendency in the “same action” is not permitted. (Cohen v. Ratkowsky, 43 App. Div. 196; Lipschutz v. Horton, 55 Misc. 44; Shostack v. Haskell, 116 Misc. 475.) Where the second action brought by plaintiff seeks the same relief, affects the same property, and is based on the same contract, as the first action, it is in effect the “ same action ” as the first. Where, as here, a notice of pendency is filed by plaintiff, which is thereafter cancelled for failure to serve process as required by section 120, a notice filed in a subsequent action, which is actually commenced, is improper. The fact that the action, with respect to which the second notice of pendency was filed, is instituted in a different court does not make any difference. To approve such practice would lead too easily to flaunting the express command of the statute. [See 284 App. Div. 850.]