Blitman Construction Corp. v. Denbel Realty & Construction Co.

Morris E. Spector, J. Motion to cancel the notice of pendency of action filed on August 27, 1958, is denied. This notice is based on the 3d, 4th and 5th causes of action set forth in the amended complaint. Upon a prior motion to vacate a prior lis pendens based on the original complaint this court considered the amended complaint insofar as it repeated the 1st and 2d causes of action and, although reference was made to the entire amended complaint, the questions of law involved therein were not properly or adequately presented and this court did not intend to pass upon them. The amended complaint was served on Friday, August 8, 1958, and the prior motion was argued on Monday, August 11, 1958. The first two causes of action are clearly for money damages, as is more fully set forth in the opinion on the motion addressed to the prior lis pendens. However, the third cause of action of the amended complaint is to set aside a conveyance of real property from defendant Denbel Realty & Construction Co., Inc., to defendant Twelve Seventy Fifth Ave. Cooperative, Inc., as a fraud upon creditors pursuant to article 10 of the Debtor and Creditor Law and, as such, is an action affecting title to real property within section 120 of the Civil Practice Act (Lindheim & Co. v. Central Nat. Realty & Constr. Co., 111 App. Div. 275; Kirschner-Goodheart Associates v. Whitehead Management Corp., 60 N. Y. S. 2d 648). In view of the foregoing, the lis pendens of August 27,1958, may not be cancelled and, accordingly, it is not necessary to pass upon the applicability of section 120 of the Civil Practice Act to the 4th and 5th causes of action.