§ 6514.Motion for cancellation of notice of pendency.

This section is derived from CPA § 123, as amended in 1957 upon recommendation of the Judicial Conference. See Laws 1957, c 877, § 3; 2 NY Jud Conference Rep 117–120 (1957). The section follows the Judicial Conference’s distinction between mandatory and discretionary cancellation. It also incorporates the provisions of CPA § 586 which covered rights of parties after appeal from a judgment in favor of the owner of real property.

Subd (a) is based upon the first sentence of CPA § 123; no change of substance is intended. The final clause in the subdivision embodies the substance of most of CPA § 586. The first two sentences of that section provided that the judgment determining title to real property was effective for all purposes including the right of the person adjudged owner to transfer title to a purchaser in good faith unless stayed on appeal. This is the effect of § 5519, stay of enforcement pending appeal. The final sentence of CPA § 586 permitted the person in whose favor judgment was rendered to obtain an order cancelling a lis pendens and also cancelling and discharging of record a filed contract which tended to defeat his title unless a stay had been obtained. The cancellation of the lis pendens in the absence of a stay is explicitly provided for in this subdivision. The power of the court to order the contract cancelled is clear since the gist of the action is the obtaining of this relief through the court’s exercise of traditional equity powers.

Subd (b) is based upon the second sentence of CPA § 123. Under CPLR rule 3216, a court on its own initiative may dismiss an action where the plaintiff “unreasonably neglects to proceed in the action.” The quoted words, which appeared in CPA § 123 were also grounds for dismissal under CPA § 181, except that the latter section required the motion to be made by a defendant “against whom he so neglects to proceed,” while CPA § 123 permitted “any person aggrieved” to apply for the relief. Apparently the purpose of making failure to proceed a discretionary ground for cancellation under CPA § 123 was to permit the customary conditional order granting the motion unless the next procedural step was taken within a limited time. Since such an order is permissible upon motion of a “person aggrieved” under rule 3216, and since an order dismissing the action, would, after the time to appeal expired, be a mandatory ground for cancellation under subd (a), failure to proceed has been omitted in subd (b). The third and fourth sentences of CPA § 123, which stated the method of cancelling a notice, are omitted as unnecessary. If an order is granted directing a county clerk to cancel a notice, it would seem obvious that it must be filed with the clerk to be effective. The details of the clerk’s method of obeying the order are immaterial.

Subd (c) of this section is based upon the second paragraph of CPA § 123, which was added in 1957 upon the Judicial Conference’s recommendation. It was intended to relieve defendants who were “substantially without remedy under the present law as to losses sustained by reason of the filing of a notice of pendency.” 2 NY Jud Conference Rep 120 (1957). The last sentence of CPA § 121 originally followed the cancellation provisions. It was added in 1905 to § 1671 of the Code of Civil Procedure. Laws 1905, c 60. It stated: “After a notice of pendency of action has been cancelled, neither the proceedings in the action nor any judgment which may be rendered therein shall affect the real property described in any such cancelled notice.” This sentence obviously cannot be read literally; if it has any meaning, it is the self-evident one that a “cancelled notice has no effect as to persons not otherwise bound.” See 14 Carmody-Wait, Cyclopedia of New York Practice 81 (1954). Hence it “ceases to be a statutory notice to purchasers . . . , and it is not negligence or evidence of bad faith on the part of the purchaser not to search for the papers which had been filed in the action, and such purchaser is not chargeable with either a statutory or implied notice.” Ibid. Nor does it seem that a purchaser who searched and found a recorded notice which had been cancelled could be held to have thereby acquired actual notice of a pending action. See notes to § 6513. It should be observed, however, that cancellation of a notice instigated by a prospective purchaser has questionable effect on him, since he would obviously have actual notice of the litigation.

Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1967, ch 440, eff Sept 1, 1967; L 1971, ch 668, eff June 22, 1971.