Mastronardi v. Countywide Construction Corp. , 767 N.Y.S.2d 802 ( 2003 )

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Suffolk County (Costello, J.), dated September 4, 2002, which denied its motion pursuant to CPLR 6512 and 6514 (a) to cancel the notice of pendency filed on January 17, 2002.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the notice of pendency filed on January 17, 2002, is cancelled.

It is undisputed that in a prior action regarding the same contract, the complaint was dismissed as against the defendant herein on the basis of improper service of process, and the notice of pendency filed in relation to that action was cancelled. Thus, the plaintiff failed in the prior action to strictly comply with the requirement of CPLR 6512 that service of the summons be effected within 30 days of the filing of the notice of pendency. In light of that failure to comply with CPLR 6512, the second notice of pendency, filed on January 17, 2002, in the instant action, cannot be permitted to stand (see Weiner v MKVII-Westchester, 292 AD2d 597, 599 [2002]; Chiulli v Cross Westchester Dev. Corp., 134 AD2d 559 [1987]; Gargano v Rubin, 130 AD2d 709, 710 [1987]; Holiday Invs. Corp. v Breger & Co., 112 AD2d 979 [1985]). Santucci, J.P., Luciano, Schmidt and Adams, JJ., concur.