Citation Numbers: 53 Misc. 2d 1042
Judges: Cohalan
Filed Date: 5/4/1967
Status: Precedential
Modified Date: 2/5/2022
Motion by defendant to cancel a notice of pendency of action is granted. Plaintiff is the owner of the subject property. Defendant is the holder of a purchase-money mortgage on the property. Plaintiff has instituted an action for a judgment rescinding a contract of sale and for a cancellation of the bond and second mortgage executed by plaintiff to defendant. It appears from the papers before the court that plaintiff is not entitled to file a notice of pendency of action herein. See Starkie v. Nib Constr. Corp. (235 App. Div. 699 [2d Dept.]): “ Order reversed on the law, with ten dollars costs and disbursements, and motion granted. Civil Practice Act, § 120 [amd. by L. 1929, ch. 337], did not authorize the filing of a Us pendens. No claim is made in the complaint against the property of the defendant. (Ackerman v. True, 44 App. Div. 106; McManus v. Weinstein, 108 App. Div. 301.) ”
This action does not permit or warrant the use of a notice of pendency of action. An assignee of the bond and mortgage referred to in the complaint is subject to the same defenses as the assignor, with or without the filing of the notice of pendency. See New York Jurisprudence, Mortgages and Deeds of Trusts (Vol. 38, § 200, pp. 38L-385): “ The assignee of a mortgage, even if he is a bona fide purchaser, takes the mortgage subject to the equities, defenses (legal and equitable), counterclaims, and set-