Ali v. Ahmad

In a shareholder’s derivative action, the defendants appeal from an order of the Supreme Court, Queens County (Polizzi, J.), dated June 28, 2004, which denied their motion to cancel a notice of pendency filed by the plaintiff. Ordered that the order is reversed, on the law, with costs, and the motion is granted; and it is further, Ordered that the Queens County Clerk is directed to cancel the notice of pendency dated February 14, 2004, indexed against Block 8578, Lot 41. A notice of pendency may be filed in any action “in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property” (CPLR 6501; see Matter of Sakow, 97 NY2d 436, 440 n 3 [2002]). This includes a shareholder’s derivative action “if the suit is seeking to recover the [476] corporation’s real property” (5303 Realty Corp. v O & Y Equity Corp., 64 NY2d 313, 324 n 8 [1984]; see Keen v Keen, 140 AD2d 311, 312 [1988]; Grossfeld v Beck, 42 AD2d 844 [1973]; cf. Pizzurro v Pasquino, 201 AD2d 635, 636 [1994]). The complaint, which seeks, inter alia, to impose a constructive trust, does not, however, allege that the real property which would form the corpus of the trust is either a corporate asset or was purchased with fraudulently diverted corporate funds (see Pizzurro v Pasquino, supra at 636; cf. Keen v Keen, supra at 312). Moreover, the plaintiffs related actions for an accounting and to recover money damages do not affect the title to, or the use, possession, or enjoyment of real property (see Distinctive Custom Homes Bldg. Corp. v Esteves, 12 AD3d 559 [2004]; Bennett v John, 151 AD2d 711 [1989]). The defendants’ request for an award of costs and expenses (see CPLR 6514 [c]) is improperly raised for the first time on appeal (see Sears Mtge. Corp. v Yaghobi, 19 AD3d 402, 403 [2005]; Gammal v La Casita Milta, 5 AD3d 630, 631 [2004]). In light of our determination, the defendants remaining contentions need not be addressed. Adams, J.P., Crane, S. Miller and Mastro, JJ., concur.