CPLR § 6514 Motion for cancellation of notice of pendency
(a) Mandatory cancellation
(c) Costs and expenses
§ 6512 Service of Summons1
Deans v Sorid, 2008 NY Slip Op 08448 (App. Div., 2d)
The plaintiff commenced this action seeking, inter alia, to
impose a constructive trust in her favor on certain real property
formerly owned by her. She filed a notice of pendency on the property
on April 12, 2007. On or about May 1, 2007, the defendant Harvey Sorid
was served with four copies of the summons and complaint at the
business office of all of the defendants. On May 4, 2007, the plaintiff
mailed two copies of the summons and complaint to the business office,
addressed to each of the defendants Jay Sorid and Susan Sorid
(hereinafter together the appellants). The envelopes were marked
"privileged + confidential."
The appellants moved, inter alia, pursuant to CPLR 6514(a) to
cancel the notice of pendency and pursuant to CPLR 6514(c) for an award
of costs, arguing that Harvey Sorid did not have an ownership interest
in the premises and that service was not properly effectuated upon
either of them within the 30-day time limit of CPLR 6512. The
appellants did not challenge personal jurisdiction [*2]as
it was undisputed that service was effectuated upon them in June 2007.
The plaintiff opposed the motion, arguing that Harvey Sorid had an
equitable interest in the property and therefore service upon him was
sufficient to avoid cancellation of the notice of pendency, and that,
in any event, service had been effectuated on the appellants pursuant
to CPLR 308(2) within the statutory time period. In the order appealed
from, the Supreme Court, inter alia, denied those branches of the
appellants' motion which were pursuant to CPLR 6514(a) to cancel the
notice of pendency and pursuant to CPLR 6514(c) for an award of costs.
We affirm the order insofar as appealed from.
CPLR 6514(a) provides for mandatory cancellation of a notice of
pendency if service of a summons has not been completed within the time
period set forth in CPLR 6512, which is 30 days after filing of the
notice of pendency. In multi-defendant cases, service is sufficient for
purposes of CPLR 6514(a) if it is timely made on any one defendant with
an ownership interest in the subject property (see Merchants Bank of N.Y. v Rosenberg, 31 AD3d 507; Weiner v MKVII-Westchester, 292 AD2d 597; Rabinowitz v Larkfield Bldg. Corp., 231 AD2d 703; Slutsky v Blooming Grove Inn, 147 AD2d 208, 212).
Contrary to the plaintiff's contention, the defendant Harvey Sorid did not have an ownership interest in the subject property (cf. Merchants Bank of N.Y. v Rosenberg, 31 AD3d 507). Accordingly, service upon him was insufficient to meet the requirements of the statute.
However, for the purposes of CPLR 6514, service upon the
appellants was timely effectuated pursuant to CPLR 308(2). While the
envelopes mailed to their business office erroneously bore the legend
"privileged + confidential" instead of "personal and confidential,"
under the circumstances of this case, where the defect does not
implicate personal jurisdiction and no prejudice resulted from the
mislabeling, the defect was properly disregarded pursuant to CPLR 2001 (see Patrician Plastic Corp. v Bernadel Realty Corp., 25 NY2d 599, 608; Matter of Perez v Villamil, 19 AD3d 501; Federal Loan Home Mtge. Corp v Torres, 238 AD2d 306, 307).
1. CPLR § 6512 reads:
notice of pendency is effective only if, within thirty days after
filing, a summons is served upon the defendant or first publication of
the summons against the defendant is made pursuant to an order and
publication is subsequently completed. If the defendant dies within
thirty days after filing and before the summons is served upon him or
publication is completed, the notice is effective only if the summons
is served upon his executor or administrator within sixty days after
letters are issued.
The emphasis and footnote are mine.