Sudit v. Labin , 148 A.D.3d 1077 ( 2017 )

Sudit v Labin (2017 NY Slip Op 02079)

Sudit v Labin

2017 NY Slip Op 02079

Decided on March 22, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 22, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
LEONARD B. AUSTIN
SYLVIA O. HINDS-RADIX
BETSY BARROS, JJ.

2015-01714
(Index No. 12235/08)

[*1]Vladimir Sudit, doing business as VS International, respondent,

v

Esther M. Labin, et al., defendants, Chaim Lax, et al., appellants.

Sanders, Gutman & Brodie, P.C., Brooklyn, NY (D. Michael Roberts of counsel), for appellants.

Joseph J. Haspel, Goshen, NY, for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Chaim Lax and First Meridian Mortgage appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated October 14, 2014, which granted the plaintiff's motion to extend a notice of pendency.

ORDERED that the order is affirmed, with costs.

The facts underlying this action are stated in our decision and order on a related appeal (see Sudit v Labin, _____ AD3d _____ [Appellate Division Docket No. 2014-08061; decided herewith]), and are supplemented here only as necessary.

The plaintiff filed successive notices of pendency on the subject property to preserve his interests during the course of this, and prior, actions. The defendants Chaim Lax and First Meridian Mortgage (hereinafter together the appellants) contend that the Supreme Court erred in granting the plaintiff's motion to extend a notice of pendency since the motion was made after the prior notice of pendency had already expired. We disagree.

CPLR 6513 provides that a notice of pendency is valid for three years from the date of filing and may be extended for additional three-year periods "for good cause shown." The general rule is that the extension must be requested, and the extension order "filed, recorded and indexed," before expiration of the prior notice (CPLR 6513). " This is an exacting rule; a notice of pendency that has expired without extension is a nullity'" (Ampul Elec., Inc. v Village of Port Chester, 96 AD3d 790, 791, quoting Matter of Sakow, 97 NY2d 436, 442).

The general rule does not apply, however, to an action to foreclose a mortgage on real property. Instead, CPLR 6516(a) specifically provides, in pertinent part, as follows: "In a foreclosure action, a successive notice of pendency may be filed to comply with section thirteen hundred thirty-one of the real property actions and proceedings law, notwithstanding that a previously filed notice of pendency in such action or in a previous foreclosure action has expired pursuant to section 6513 of this article."

Contrary to the appellants' contention, an action to foreclose an equitable mortgage constitutes a "foreclosure action" within the plain meaning of CPLR 6516(a) (see Sprague v Cochran, 144 NY 104, 113; Citibank, N.A. v Kenney, 17 AD3d 305, 308). Therefore, the plaintiff was entitled to file a successive notice of pendency, notwithstanding the expiration of the earlier notice.

The parties' remaining contentions are without merit.

CHAMBERS, J.P., AUSTIN, HINDS-RADIX and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court