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Real Property Law
Notice of Pendency Improper In Private Nuisance Action
Whelan v. Busiello, 2023 WL 5251503, AppDiv, Second Dept. (memorandum opinion)
In an action to recover damages for private nuisance, complainants and their lawyer appealed from Supreme Court's vacatur of their notice of pendency, imposition of costs and expenses on complainants, and imposition of sanctions on the lawyer. The Appellate Division modified with respect to costs and expenses, but otherwise affirmed, holding that the notice of pendency was improper in a private nuisance action.
Complainants sought to prevent landowner from committing wrongful acts against their property and against waterways generally. With their complaint, they filed a notice of pendency. Landowner's lawyer wrote to complainant's lawyer, both by letter and by email, citing legal authority, asking the lawyer to cancel the notice of pendency. When the lawyer did not do so voluntarily, landowner moved to vacate the notice of pendency, for an order of costs and expenses pursuant to CPLR 6514, and for sanctions on the lawyer. Supreme Court granted the motion. Complainants and their lawyer appealed.
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