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The Powerful Impact of the Non-Foreclosure Notice of Pendency

BY Joel David Sharrow
June 30, 2004

RPAPL ' 1331 and RPAPL ' 1403 Notices of Pendency are requisite elements for foreclosing a mortgage. See, Chiarelli v. Kotsifos, 5 A.D.3d 345 (a notice of pendency is a prerequisite to obtaining a judgment in a mortgage foreclosure action); Campbell v. Smith, 309 A.D.2d 581, 582 (a notice of pendency is required in a foreclosure action under RPAPL Article 13). In contrast, an ex parte CPLR Article 65 Notice of Pendency (the “Notice”) is not required but it is a significant tool in an action claiming title to, or an interest in or the use or enjoyment of, another's land. The filer does not have to make a meritorious showing or post a bond. Article 65 provides mechanisms for the defendant-owner to vacate the Notice that caused an unilaterally imposed restraint on its realty. But, recent case law establishes the near futility of such efforts if the plaintiff has satisfied the minimal statutory requisites for filing the Notice.

The claimant need only: 1) sue and assert an interest in a defendant's land, 2) unilaterally file a Notice setting forth the names of the parties, the action's relief and designation of the property, and 3) promptly effect service. The defendant will be hard pressed to free up the realty while the lawsuit is pending.

CPLR 6514(a) provides that, upon motion, a court is required to set aside a Notice if service of process has not been made upon at least one defendant within thirty (30) days of filing the Notice. Otherwise, it continues until the case settles, discontinues or abates. A prudent plaintiff will effect timely service, mooting this mandatory vacatur basis.

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