Matter of Sakow

CourtNew York Court of Appeals
Writing for the CourtWESLEY, J.
Citation767 N.E.2d 666,741 N.Y.S.2d 175,97 N.Y.2d 436
Decision Date21 March 2002
PartiesIn the Matter of the Estate of MAX SAKOW, Deceased. WALTER SAKOW, as De Facto Executor of MAX SAKOW, Deceased, et al., Respondents; DIANA SAKOW et al., Appellants.

97 N.Y.2d 436
767 N.E.2d 666
741 N.Y.S.2d 175

In the Matter of the Estate of MAX SAKOW, Deceased.
WALTER SAKOW, as De Facto Executor of MAX SAKOW, Deceased, et al., Respondents;
DIANA SAKOW et al., Appellants

Court of Appeals of the State of New York.

Argued February 13, 2002.

Decided March 21, 2002.


97 N.Y.2d 437
Diana Sakow and Evelyn Breslaw, appellants pro se

Robson, Ferber, Frost, Chan & Essner, LLP, New York City (Kenneth N. Miller of counsel), and Wolman Babitt & King, LLP (James N. Blair of counsel), for respondents.

97 N.Y.2d 444
Chief Judge KAYE and Judges SMITH, LEVINE, CIPARICK, ROSENBLATT and GRAFFEO concur

OPINION OF THE COURT

WESLEY, J.

The narrow issue presented on this appeal arises in the context of a long-standing sibling dispute over the assets of their father's estate. When Max Sakow died on January 30, 1956, he either owned outright or had interests in a number of parcels of real estate. He was survived by his wife, Rose, now deceased, and three children—Walter Sakow, Diana Sakow and Evelyn Sakow Breslaw. At the time of their father's death Diana was 15 years old, Evelyn was 20 and Walter was 25.

97 N.Y.2d 438
Unbeknownst to his daughters, Max Sakow's will left one third of his estate to his wife and two thirds to the children, with the shares to his daughters to be held in trust until they reached the age of 23

Rose Sakow received letters testamentary pursuant to a decree entered on March 5, 1956; however, the trusts were never formed and her daughters did not receive any distribution from the estate. According to Mrs. Sakow, she left all business decisions with respect to the estate to her son and signed any document he presented. Walter Sakow apparently enjoyed unfettered discretion in controlling the estate properties for the next several decades, arranging the sale of some parcels and gaining either an outright or partial ownership interest in others.

In the early 1980s Diana Sakow and Evelyn Breslaw learned of the will and its contents, and in 1984 instituted a compulsory accounting procedure against their mother and brother. The sisters claimed fraud, breach of fiduciary duty and unjust enrichment. Notices of pendency were filed in 1987, and renewed by court order dated February 26, 1990, against nine properties (16 lots) in Bronx County (Bronx properties) and several additional properties (additional properties) in other New York counties that were allegedly owned by Max Sakow at the time of his death and are presently held by either Walter Sakow or his nominees.

During the liability phase of the ensuing bifurcated trial the Surrogate on March 18, 1994 dismissed all of the sisters' claims relevant here and authorized the removal of the notices of pendency. The record indicates that the sisters did not renew the notices prior to their statutory expiration on February 26, 1993, nearly 13 months before the Surrogate's decision. The sisters appealed to the Appellate Division, which modified the Surrogate's order and held that their claims were not time barred and that Walter Sakow was responsible for an accounting as the de facto executor of the estate (219 AD2d 479). The Appellate Division made no reference to the effect of its order on the notices.

Shortly thereafter, the sisters moved to obtain notices of pendency or, in the alternative, orders of attachment against the Bronx properties and several additional properties. In 1996 the Surrogate granted the application to reinstate notices of pendency only as to the Bronx properties, and reserved on the additional properties. Despite this ruling favorable to the

97 N.Y.2d 439
sisters' interests they never entered an order (see 22 NYCRR 207.37 [b]) or filed notices of pendency.

In 1999 the sisters again moved for the appointment of a temporary receiver to operate and control the Bronx properties and permission to renew and/or file notices of pendency with regard to both the Bronx properties and 11 additional properties (16 lots). The Surrogate ordered the appointment of a temporary receiver for the Bronx properties, and granted the application to file notices of pendency as to the Bronx properties and additional properties. The Surrogate reasoned that the strict procedural requirements for extension of a notice of pendency beyond the three-year term granted by CPLR 6513 applied only to insuring continuous effect for a notice of pendency. In the court's view, nothing prevented it from entering an order permitting the filing of notices of pendency to take effect only from the date the new order is entered.

The Appellate Division agreed with the Surrogate's decision to appoint a temporary receiver for the Bronx properties, but modified the order by denying the motion to file notices of pendency on all of the properties.1 The Court reasoned that because the notices had been vacated or expired without timely renewal, the sisters should not have been permitted to file new notices with respect to those properties.2 The Appellate Division granted leave to this Court on a certified question.

Does CPLR 6513 permit a plaintiff to file a notice of pendency after a previously filed notice of pendency concerning the same causes of action or claims has expired without timely renewal? The statutory language of CPLR article 65, its legislative history and underlying policies all clearly indicate that the answer is no.

97 N.Y.2d 440
Article 65 of the CPLR sets forth the authority and procedural requirements for securing a notice of pendency.3 Once the notice has been properly filed with the county clerk where the property is situated (see CPLR 6511), it puts the "world on notice of the plaintiff's potential rights in the action and thereby warn[s] all comers that if they then buy the realty or lend on the strength of it or otherwise rely on the defendant's right, they do so...

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40 practice notes
  • Diaz v. Pataki, No. 03 Civ. 10194(SHS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 26, 2005
    ...New York's lis pendens statute "evolved from the common law doctrine of Page 273 lis pendens," In the Matter of Max Sakow, 97 N.Y.2d 436, 440, 767 N.E.2d 666, 741 N.Y.S.2d 175 At common law, the mere filing of a lawsuit claiming an interest in real property served as constructive ......
  • Diaz v. Paterson, Docket No. 05-2685-cv.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 17, 2008
    ...5303 Realty Corp. v. O & Y Equity Corp., 64 N.Y.2d 313, 319, 486 N.Y.S.2d 877, 476 N.E.2d 276, 280 (1984), quoted in In re Sakow, 97 N.Y.2d 436, 440, 741 N.Y.S.2d 175, 767 N.E.2d 666, 669 (2002). Common law lis pendens attached immediately upon service of process; no separate notice or ......
  • RL 900 Park, LLC v. Ender, 1:18-cv-12121 (MKV)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 25, 2021
    ...the New York courts' command that parties strictly must comply with all of the requirements for notices of pendency. Matter of Sakow, 97 N.Y.2d 436, 441 (2002). In short, RL's filing of an "Amended Notice of Pendency" in July 2020 did nothing more than alert prospective purchasers......
  • Roeder v. Rogers, No. 01-CV-6516L.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • May 22, 2002
    ...on the defendant's right, they do so subject to whatever the action may establish as the plaintiff's right." In the Matter of Sakow, 97 N.Y.2d 436, 741 N.Y.S.2d 175, 767 N.E.2d 666, 669 (2002) (quotations omitted). Because a notice of pendency can affect the alienability of property, t......
  • Request a trial to view additional results
40 cases
  • Diaz v. Pataki, No. 03 Civ. 10194(SHS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 26, 2005
    ...New York's lis pendens statute "evolved from the common law doctrine of Page 273 lis pendens," In the Matter of Max Sakow, 97 N.Y.2d 436, 440, 767 N.E.2d 666, 741 N.Y.S.2d 175 At common law, the mere filing of a lawsuit claiming an interest in real property served as constructive ......
  • Diaz v. Paterson, Docket No. 05-2685-cv.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 17, 2008
    ...5303 Realty Corp. v. O & Y Equity Corp., 64 N.Y.2d 313, 319, 486 N.Y.S.2d 877, 476 N.E.2d 276, 280 (1984), quoted in In re Sakow, 97 N.Y.2d 436, 440, 741 N.Y.S.2d 175, 767 N.E.2d 666, 669 (2002). Common law lis pendens attached immediately upon service of process; no separate notice or ......
  • RL 900 Park, LLC v. Ender, 1:18-cv-12121 (MKV)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 25, 2021
    ...the New York courts' command that parties strictly must comply with all of the requirements for notices of pendency. Matter of Sakow, 97 N.Y.2d 436, 441 (2002). In short, RL's filing of an "Amended Notice of Pendency" in July 2020 did nothing more than alert prospective purchasers......
  • Roeder v. Rogers, No. 01-CV-6516L.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • May 22, 2002
    ...on the defendant's right, they do so subject to whatever the action may establish as the plaintiff's right." In the Matter of Sakow, 97 N.Y.2d 436, 741 N.Y.S.2d 175, 767 N.E.2d 666, 669 (2002) (quotations omitted). Because a notice of pendency can affect the alienability of property, t......
  • Request a trial to view additional results

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