How Do You Remove a Lis Pendens in New York?
- Thompson & Skrabanek
- 28 minutes ago
- 4 min read
A lis pendens, formally known in New York as a Notice of Pendency, is a notice filed against real property to alert potential purchasers, lenders, and others that the property is involved in pending litigation. New York's rules governing Notices of Pendency are contained in CPLR Article 65.
A Notice of Pendency can have an immediate practical effect on a property owner. Once filed, it provides constructive notice that the outcome of the lawsuit may affect rights in the property. As a result, it can make the property difficult to sell, finance, or otherwise transfer while the litigation remains pending. Because a Notice of Pendency can be filed without first obtaining a court order, New York courts require strict compliance with the statute governing its use.
When Is a Notice of Pendency Proper?
Under CPLR § 6501, a Notice of Pendency may be filed where the judgment sought in the lawsuit would affect the title to, incumbrance of, or possession, use, or enjoyment of real property.
Typical examples include disputes over ownership of property, specific performance of a real estate contract, easements, and other claims in which the plaintiff seeks to establish or protect a direct interest in particular real estate.
The fact that a lawsuit involves real estate, however, does not automatically make a Notice of Pendency proper. Courts look at the actual nature of the claims being asserted. For example, the First Department has upheld vacatur where a plaintiff did not claim an interest in the defendant's property, even though the lawsuit concerned alleged damage caused by construction on that property. See 801-803, LLC v. 805 Ninth Ave. Realty Group, LLC, 188 A.D.3d 478 (1st Dep't 2020).
This distinction is especially important where the lawsuit is fundamentally seeking money damages. A plaintiff ordinarily cannot use a Notice of Pendency simply to tie up a defendant's real estate as security for a potential future judgment. Other remedies, such as prejudgment attachment, have their own statutory requirements.
How Can a Lis Pendens Be Removed?
A property owner faced with an improper Notice of Pendency has several potential avenues for seeking cancellation.
1. The lawsuit does not actually affect the property.A defendant can move to cancel a Notice of Pendency where the underlying pleading does not state the type of direct real-property claim required by CPLR § 6501. Courts look to the substance of the lawsuit, rather than merely the relief requested by the plaintiff. If the dispute is really a claim for money, simply asking for an interest in the defendant's property may not be enough to support the Notice of Pendency.
2. Mandatory cancellation under CPLR § 6514(a).CPLR § 6514 requires cancellation in several circumstances. These include failure to timely serve the summons after filing the Notice of Pendency, as well as situations where the underlying action has been settled, discontinued, or abated. A Notice of Pendency also cannot ordinarily survive once the underlying claim supporting an interest in the property has been finally disposed of.
3. Discretionary cancellation for lack of good faith.CPLR § 6514(b) separately permits a court to cancel a Notice of Pendency where the plaintiff has not commenced or prosecuted the action in good faith. This can include circumstances where the Notice of Pendency is being used for an ulterior purpose rather than to protect a legitimate claimed interest in the property. Lack of good faith is not lightly found, however, and ordinarily requires more than simply showing that the plaintiff's claim is weak.
4. Cancellation upon an undertaking.In appropriate cases, CPLR § 6515 provides another option. A court may permit a Notice of Pendency to be cancelled upon the posting of an undertaking, effectively substituting financial security for the continued encumbrance of the property. This can be particularly useful where a property owner needs to complete a transaction before the underlying lawsuit can be resolved.
Thompson & Skrabanek Can Clear a Frivolous Lis Pendens
Thompson & Skrabanek recently obtained dismissal of a lawsuit and cancellation of a Notice of Pendency filed against our client's Manhattan apartment. In Surmeli v. Surmeli, the plaintiff alleged an ownership interest in an apartment purchased by his relative after the plaintiff had transferred approximately $1 million to him. We argued that the dispute was fundamentally about money and that the plaintiff could not establish a legal interest in the particular apartment, which had not even been identified when the funds were transferred. The New York County Supreme Court agreed, dismissed the action, and cancelled the Notice of Pendency. The Court further concluded that, even if mandatory cancellation had not been required, discretionary cancellation would have been appropriate under the circumstances.
Thompson & Skrabanek regularly represents property owners and other parties in New York real estate disputes. If a Notice of Pendency has been filed against your property, or you are considering filing one to protect an interest in real estate, contact us to schedule a free consultation and discuss your options.
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