Pacific Lime Inc. v. Lowenberg Corp.
| Decision Date | 24 July 1980 |
| Citation | 431 N.Y.S.2d 190,77 A.D.2d 737 |
| Parties | PACIFIC LIME INCORPORATED, Appellant, v. LOWENBERG CORPORATION et al., Respondents, and Robert M. Brown et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Jerry, Lewis, Wylie & Lyon, Plattsburgh (John T. DeGraff, Albany, of counsel), for appellant.
John J. Glavin, Albany, for respondents.
Before MAHONEY, P. J., and GREENBLOTT, MAIN, MIKOLL and HERLIHY, JJ.
Appeals (1) from an order of the Supreme court at Special Term, entered January 16, 1978 in Clinton County, which declared a judgment of foreclosure and sale to be null and void, (2) from an order of the same court, entered January 24, 1978 in Clinton County, which, inter alia, denied plaintiff's motion for leave to file an amended notice of pendency and to serve an amended complaint, and (3) from an order of the same court, entered January 14, 1980 in Clinton County, which denied plaintiff's motion to serve an amended complaint and supplemental summons.
This action was duly commenced in October, 1969 to foreclose certain mortgages by plaintiff as assignee of the original mortgagee. The action was vigorously litigated by the defendants and a jury trial which commenced in 1974 was terminated by an open court stipulation of settlement whereby a judgment of foreclosure and sale was to be entered, but sale of the property was to be delayed for a three-year period. The judgment was entered on February 8, 1974.
About 34 months later, the defendants * moved at the foot of the judgment to have it declared "null and void" because of a failure to comply with section 1331 of the Real Property Actions and Proceedings Law. Section 1331 provides, in pertinent part, as follows:
The plaintiff, at least twenty days before the final judgment directing a sale is rendered, shall file * * * a notice of the pendency of the action * * *.
The purpose of a notice of pendency was described in Mechanics Exch. Sav. Bank v. Chesterfield, 34 A.D.2d 111, 113, 309 N.Y.S.2d 548, 550:
Its function is to carry out the public policy that a plaintiff's action shall not be defeated by an alienation of the property during the course of the lawsuit; otherwise there would be no end of any suit, the justice of the court would be evaded and great difficulty would confront a suitor * * * (citations omitted).
It was further observed that, as to cases dealing with the commencement of an action (e. g., Israelson v. Bradley, 308 N.Y. 511, 515-516, 127 N.E.2d 313; Lanzoff v. Bader, 13 A.D.2d 995, 216 N.Y.S.2d 632), there was some authority that where a notice of pendency was declared invalid, "a new notice cannot be filed" (Mechanics Exch. Sav. Bank v. Chesterfield, supra, 34 A.D.2d p. 114, 309 N.Y.S.2d p. 551). The Israelson and Lanzoff cases did not deal with section 1331.
In this case, the plaintiff had duly filed a notice of pendency at the time of the commencement of the action in October of 1969. CPLR 6513 provides that a notice of pendency is effective for three years from the date of its filing, and the motion of the defendants was based upon the legal effect of such ineffectiveness as to the requirement of section 1331 of the Real Property Actions and Proceedings Law that a notice be filed 20 days before entry of final judgment directing a sale. In the recent case of Walter v. State Bank of Albany, App.Div., 426 N.Y.S.2d 438 (Apr. 3, 1980), this court held that as to parties acquiring and/or perfecting an interest in real property after the expiration of a notice of pendency, the notice would have no effect (see also, Schoepp v. State of New York, 69 A.D.2d 917, 415 N.Y.S.2d 276). However, as to interests acquired and/or perfected during the effective period of time for a notice of pendency, the Walter case holds that such parties are fully subject to the purpose to be served by the lien at that time.
In the present case, the moving parties were concededly all duly joined in the proceeding as defendants prior to the expiration date of the notice of pendency and none objected to the entry of judgment. As to ...
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...it could not affect White Eagle's contract vendees who acquired their interest after the notice had expired (see Pacific Lime v. Lowenberg Corp., 77 A.D.2d 737, 431 N.Y.S.2d 190; Walter v. State Bank of Albany, 73 A.D.2d 406, 426 N.Y.S.2d 438) and recorded that interest before the second no......
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