Notice of Pendency Removal

Notice of pendency removal is a big concern of property owners who want to sell their property. A notice of notice of pendency means that the property is subject of litigation. Although the property can technically still be sold, title insurance companies usually decline to insure sales of properties with notice of pendency.

How to remove notice of pendency in New York

There are several ways to cancel a notice of notice of pendency in New York. The method used to cancel will depend on the circumstances of each case.

Property not subject matter of the action

When the property is not the subject matter of the action, notice of pendency is not the proper remedy. Your attorney can file a motion to cancel the notice of pendency on the ground that the suit does not affect the title to or the possession, use or enjoyment of real property. For example, if notice of pendency was annotated in order to secure a money judgment and the property that was subjected to the notice of notice of pendency was not in any way involved in the case except to secure a future money judgment, the notice of pendency can be removed.

By stipulation

Stipulation is the fastest way to remove notice of pendency. You and the plaintiff can agree to cancel the notice of pendency by stipulation and submit it to court. The stipulation must be signed by the attorney for the plaintiff and by the attorneys for all the defendants who have appeared or answered including those who have waived all notices and the defendants who have been served and have not appeared.

By reason of duration

Under CPLR § 6513, the duration of a notice of pendency is three years from the date of filing. When this 3-year period lapses and it is not extended by the court, the notice of pendency expires by operation of law. Thus, your attorney can request the removal of the notice of pendency over New York property that is beyond three years and has not been extended.

By posting an undertaking

Under CPLR § 6515, a notice of pendency may be removed by posting an undertaking in an amount to be fixed by the court, and if: (a) the court finds that adequate relief can be secured to plaintiff by giving of such an undertaking; or (b) in such action, the plaintiff fails to give an undertaking, in an amount to be fixed by the court, that the plaintiff will indemnify the moving part for the damages that he or she may incur if the notice of pendency is not cancelled.

What is an undertaking? CPLR § 2501 defines an undertaking as:

1. any obligation, whether or not the principal is a party thereto, which contains a covenant by a surety to pay the required amount, as specified therein, if any required condition, as specified therein or as provided in subdivision (c) section 2502, is not fulfilled; and
2. any deposit, made subject to the required condition, of the required amount in legal tender of the United States or in face value of unregistered bonds of the United States or of the state.

Usually, the undertaking takes the form of a surety bond or an undertaking secured with collateral.

When the defendant posts an undertaking in an amount fixed by the court to cancel the notice, the plaintiff is given the opportunity to request the stay of the notice of pendency by posting a similar undertaking that will indemnify the defendant if the notice of pendency is not cancelled.

By filing a motion to dismiss

Another way of removing notice of pendency is for your attorney to file a motion to dismiss. Under CPLR § 3211, a motion to dismiss can be filed on the following grounds:

• a defense is founded upon documentary evidence; or
• the court has not jurisdiction of the subject matter of the cause of action; or
• the party asserting the cause of action has not legal capacity to sue; or
• there is another action pending between the same parties for the same cause of action in a court of any state or the United States; the court need not dismiss upon this ground but may make such order as justice requires; or
• the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds; or
• with respect to a counterclaim, it may not properly be interposed in the action; or
• the pleading fails to state a cause of action; or
• the court has not jurisdiction of the person of the defendant; or
• the court has not jurisdiction in an action where service was made under section 314 or 315; or
• the court should not proceed in the absence of a person who should be a party.
• the party is immune from liability.

This is a more expensive way to remove a notice of pendency because it requires more effort on the part of the attorney to draft this motion. Your situation must also fall under any of the grounds where a motion to dismiss can be raised.

Other reasons to remove a notice of pendency

CPLR § 6514 provides for other reasons to cancel a notice of pendency:

• service of summons has not been completed within the time frame provided in CPLR § 6512 (between 30 to 60 days, depending on the situation)
• the action has been settled, discontinued, or abated – the abatement of an action is the entire overthrow or destruction of the action
• if the time to appeal from a final judgment against the plaintiff has expired; or
• if enforcement of a final judgment against the plaintiff has not been stayed under CPLR § 5519
• if the plaintiff has not commenced or prosecuted the action in good faith.

Removing a notice of pendency is not a DIY affair because it requires appearance with the court, the preparation of the proper court documents, such as an order to show cause, and the legal expertise of an attorney. A successful removal of notice of pendency allows you to sell the property with no title insurance issues. If you need assistance in removing a notice of pendency, the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].