Vogel v. Meixner

— Yesawich, Jr., J. Appeal from an order of the Supreme Court at Special Term (Brown, J.), entered May 3, 1985 in Hamilton County, which granted the motion by Richard Corvetti, Diane Corvetti and C-Jeff Realty, Inc., to cancel plaintiff’s notice of pendency. On August 24, 1984, plaintiff filed a notice of pendency and a verified summons and complaint in the Hamilton County Clerk’s office. Named as defendants were realtor Val Meixner, his employer, United Farm Agency, Inc., and Peter K. Leisure, as executor of the estate of Lucille P. Leisure (the estate). At the time of filing the notice of pendency, the estate owned the property encumbered by the notice, but sold it to Richard Corvetti and C-Jeff Realty, Inc., three days later. The following day, August 28, 1984, plaintiff served a summons and complaint on Meixner; admittedly, neither Peter K. Leisure nor George S. Leisure, Jr., a coexecutor of the estate, was served, and it is unquestioned that they were available for service. Failure to serve an owner of the property in question underlies Special Term’s decision to grant the motion by the current owners to cancel the notice of pendency. Plaintiff’s thesis that service upon Meixner sufficed to validate the notice of pendency is an unacceptable one, for Meixner had no ownership interest in the property (see, Schwartz u Certified Mgt. Corp., 78 AD2d 823) and no authority to accept process on behalf of the estate of the Leisures. Order affirmed, with costs. Main, J. P., Mikoll, Yesawich, Jr., and Levine, JJ., concur. [127 Misc 2d 1011.]