Mageloff v. Sarkin

• Decision Date: 28 November 1966
• Citation: 52 Misc.2d 737,276 N.Y.S.2d 708
• Parties: Jack MAGELOFF, Plaintiff, v. Harris SARKIN and Sarkin Enterprises, Inc., Defendants.
• Court: New York Supreme Court

Page 708

276 N.Y.S.2d 708

52 Misc.2d 737

Jack MAGELOFF, Plaintiff, v. Harris SARKIN and Sarkin Enterprises, Inc., Defendants.

Supreme Court, Special Term, Onondaga County.

Nov. 28, 1966.

[52 Misc.2d 738] Bond, Schoeneck & King, Syracuse, for defendants.

Pinsky, Canter & Pinsky, Syracuse, for plaintiff.

DECISION

RICHARD J. CARDAMONE, Justice.

This is a motion made by defendants, Harris Sarkin and Sarkin Enterprises, Inc., to cancel a notice of pendency filed by the plaintiff, Jack Mageloff, in the Onondaga County Clerk's Office on October 6, 1966.

The plaintiff in his original complaint served September 23, 1966, alleged an oral agreement with the defendant, Harris Sarkin, to issue fifty percent (50%) of the capital stock of defendant Sarkin Enterprises, Inc. The defendant corporation is engaged in the construction of a 96 apartment unit on Bear Road in North Syracuse, New York. The relief demanded in the original complaint concededly did not entitle the plaintiff to file the lis pendens. Plaintiff, however, in a supplemental complaint served on October 6, 1966, alleged that Harris Sarkin caused the defendant corporation to agree to transfer and sell the real property consisting of all of the assets of the corporation without the plaintiff's knowledge or consent. On that same day, the notice of pendency was filed in the Clerk's Office. In his prayer for relief, in the supplemental complaint, plaintiff asks for an injunction as well as for money damages.

Defendant alleges in its moving papers that only $171,000, out of a financing commitment of $825,000, has been advanced and that the filing of the notice has created a cloud on the title resulting in a withholding of mortgage advances and construction itself.

CPLR 6501 provides in part: 'A notice of pendency may be filed in any action in a court of the state * * * in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property.'

The notice of pendency in question was filed following service of the supplemental complaint. An analysis of its allegations, deemed to be true (7 Weinstein-Korn-Miller, New York Civil Practice, Par. 6514.05), reveals that the defendant, Harris Sarkin, caused the defendant corporation to enter into a contract to transfer the real property (consisting substantially of all of the corporation assets) to a third party without the plaintiff's knowledge or consent (par. 3 of the complaint) and the complaint demands that the defendants be restrained from so transferring the corporate real property (par. 4 of the complaint).

Such does not state a cause of action within the meaning of CPLR 6501. While the Court is cognizant of the plaintiff's contention that he is seeking to prevent legal title (deed) from following the equitable title (the agreement to sell) out of the corporation into a third party's hands, even assuming that this will take place there still remains no allegation in the complaint either as to fraud on the part of the individual defendant or that any judgment which may be obtained in money damages, or any order directing transfer to him of his claimed stock certificates in the defendant corporation would be unenforceable. As was stated in Braunston v. Anchorage Woods, Inc., 10 N.Y.2d 302, at page 305, 222 N.Y.S.2d 316, at page 317, 178 N.E.2d 717, at page 717, at page 718 (1961): 'The usual object of filing a notice of lis pendens is to protect some right, title or interest claimed by a plaintiff in the lands of a defendant which might be lost under the recording acts in event of a transfer of the subject property by the defendant to a purchaser for value and without notice of the claim. This is not that kind of situation.'

Rosen v. Bannett (N.Y.L.J., Feb. 4, 1964, P. 18, Col. 6, (Sup.Ct. Westchester Co.)) is urged upon this Court as a controlling authority. The Court in that case based its refusal to cancel the lis pendens on the sixth cause of action stated in the complaint on the grounds that the plaintiff had sought to impress a trust and an equitable line. The sixth cause of action further sought to compel a reconveyance to the corporation of certain real property on the basis of an alleged fraudulent transfer. None of the facts there are...