Gargano v. Rubin

In an action, inter alia, to compel specific performance of a contract for the sale of real property, the defendants Isidor Rubin and Arnold Elbogen appeal from an order of the Supreme Court, Kings County (Shaw, J.), dated November 17, 1986, which denied their motion to cancel a notice of pendency filed against the subject property by the plaintiffs. Ordered that the order is reversed, with costs, and the County Clerk of Kings County is directed to cancel both the May 2, 1986 and the June 20, 1986 notices of pendency filed against the subject property. CPLR 6514 (a) mandates the cancellation of the May 2, 1986 notice of pendency filed against the subject property because the plaintiffs failed to effectuate service on any of the defendants within the 30-day time limit of CPLR 6512 (see, Cohen v Biber, 123 App Div 528; see also, Israelson v Bradley, 308 NY 511). The moving papers do not justify a finding that the appellants attempted to evade service until the time period had elapsed (cf., Iser v Garnett, 46 Misc 2d 450; Shostack v Haskell, 116 Misc 475), because the affidavits of service indicate that personal service was not even attempted on either of the appellants until after the 30-day period had expired. Moreover, the defendant Tzippy Real Estate, Inc., was never 710 served with the summons and complaint even though it is apparent that the plaintiffs knew the corporation’s business address from the deed to the property. Therefore, the court abused its discretion by denying the motion to cancel this first notice of pendency filed against the subject property (cf., Levy v Kon, 114 App Div 795). Accordingly, the County Clerk must also cancel the second notice of pendency filed against the subject property because the plaintiffs cannot avoid the mandatory statutory requirements of CPLR 6512 and 6514 (a) simply by refiling the notice of pendency (see, Israelson v Bradley, supra; see also, Deerfield Bldg. Corp. v Yorkstate Indus., 77 Misc 2d 302). Weinstein, J. P., Eiber, Spatt and Sullivan, JJ., concur.