Tilden Development Corp. v. Nicaj

• Decision Date: 11 March 2008
• Docket Number: 2007-03655.
• Citation: 49 A.D.3d 629,854 N.Y.S.2d 418,2008 NY Slip Op 02137
• Parties: TILDEN DEVELOPMENT CORP., Appellant-Respondent, v. MARIA NICAJ et al., Respondents-Appellants, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

49 A.D.3d 629

854 N.Y.S.2d 418

2008 NY Slip Op 02137

TILDEN DEVELOPMENT CORP., Appellant-Respondent, v. MARIA NICAJ et al., Respondents-Appellants, et al., Defendant.

2007-03655.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided March 11, 2008.

Motion by the appellant-respondent for leave to reargue an appeal from an order of the Supreme Court, Queens County, dated March 8, 2007, which was determined by decision and order of this Court dated November 7, 2007 [45 AD3d 573], or, alternatively, for leave to appeal to the Court of Appeals from the decision and order of this Court. [See 2007 NY Slip Op 30207(U).]

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is,

Ordered that the branch of the motion which is for leave to reargue is granted and the motion is otherwise denied as academic; and it is further,

Ordered that, upon reargument, the decision and order of this Court dated November 7, 2007 is recalled and vacated, and the following decision and order is substituted therefor:

In an action to foreclose a vendee's lien and to recover a down payment made on a contract for the sale of real property and related expenses, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Hart, J.), dated March 8, 2007, as granted the motion of the defendants Maria Nicaj and Gjelosh Nicaj to cancel its notice of pendency, and the defendants Maria Nicaj and Gjelosh Nicaj cross-appeal from so much of the same order as granted the plaintiff's cross motion to amend the caption of the action and for leave to serve and file an amended complaint, and denied, as academic, their motion to dismiss the complaint insofar as asserted against them pursuant to, inter alia, CPLR 3211 (a) (3).

Ordered that the order is reversed insofar as appealed from, on the law, and the motion of the defendants Maria Nicaj and Gjelosh Nicaj to cancel the notice of pendency is denied; and it is further,

Ordered that the order is affirmed insofar as cross-appealed from; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The plaintiff Tilden Development Corp. (hereinafter Tilden Development) entered into a written contract with the defendants Maria Nicaj and Gjelosh Nicaj (hereinafter the sellers) to purchase certain real property in Queens. Alleging a breach by the sellers, Tilden Development commenced this action to foreclose a vendee's lien and to recover its down payment and related expenses. It also filed a notice of pendency. The sellers moved to dismiss the complaint insofar as asserted against them pursuant to, inter alia, CPLR 3211 (a) (3). The sellers contended that Tilden Development lacked the capacity to sue them because inquiries had revealed Tilden Development to be a nonexistent entity. On the same basis, the sellers separately moved to cancel the notice of pendency. The sellers also sought cancellation of the notice of pendency on the ground that this was an action for money only and, therefore, would not affect the title, use, possession, or enjoyment of the property. In opposition, Tilden Development did not dispute that it was a nonexistent entity. Rather, alleging misnomer, it cross-moved to amend the caption to name Tilden Management Corp. (hereinafter Tilden Management) as the plaintiff, and for leave to serve and file an amended complaint to add a cause of action to reform the underlying contract to name Tilden Management as the purchaser. Tilden...