The New York Supreme Court, Kings County, recently denied a party’s motion to extend a notice of pendency, finding that the party had let a prior notice expire and the party was barred from filing a new notice despite the fact that there had been a substitution of parties in the action.  See 25-35 Bridge St. LLC v. Excel Auto. Tech Ctr. Inc., 62 Misc. 3d 1210(A) (N.Y. Sup. Ct. 2019).  Plaintiff 25-35 Bridge Street LLC’s predecessor brought this action in 2003 and Defendant filed a notice of pendency against the subject property.  Defendant continued to extend the notice of pendency every three years.  In 2011, Defendant brought an Order to Show Cause based on the fact that the original plaintiff had sold the property without giving notice to Defendant and then passed away.  The Court agreed to substitute Plaintiff into the action and, in 2012, issued an order amending the caption to reflect Plaintiff’s substitution and extending the notice of pendency for another three years.  Defendant did not extend the notice when it expired in 2015, and instead filed a new notice in 2016.  In 2018, Defendant brought the present motion to extend the 2016 notice of pendency.

CPLR 6516 states that, outside of a foreclosure exception not present in this case, “a notice of pendency may not be filed in any action in which a previously filed notice of pendency affecting the same property had been cancelled or vacated or had expired or become ineffective.”  Plaintiff argued that Defendant’s 2016 notice of pendency was void ab initio based on this statute and that it could not renew a void notice.  Defendant argued that the substitution of a new party as plaintiff meant that it could file a new notice of pendency in 2016.  The Court agreed with Plaintiff and denied the motion.  The Court held that “[t]he addition of or substitution of new parties to the same action is ‘more a change of form than of substance’ that does [not] warrant the filing of a successive notice of pendency” and that the 2016 notice was void ab initio and could not be extended.

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com or Dylan Goetsch at dgoetsch@riker.com.