CPLR § 6514

CPLR § 6514 and Fun With Constructive Trusts

CPLR § 6514 Motion for cancellation of notice of pendency

(b) Discretionary cancellation
The court, upon motion of any person aggrieved and upon such notice as
it may require, may direct any county clerk to cancel a notice of
pendency, if the plaintiff has not commenced or prosecuted the action
in good faith.

CPLR R. 3211(a)(7) pleading fails to state a cause of action

Maiorino v Galindo, 2009 NY Slip Op 06123 (App. Div., 2nd, 2009)

Inasmuch as the motion was made pursuant to CPLR 3211(a)(7), the
court must accept all facts as alleged in the complaint to be true and
accord the plaintiff the benefit of every possible inference (see Leon v Martinez, 84 NY2d 83, 87; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704; Smith v Meridian Tech., Inc., 52 AD3d 685,
686). In general, it may be appropriate to impose a constructive trust
in situations " [w]hen property has been acquired in such circumstances
that the holder of the legal title may not in good conscience retain
the beneficial interest'" (Sharp v Kosmalski, 40 NY2d 119, 121, quoting Beatty v Guggenheim Exploration Co.,
225 NY 380, 386). The necessary elements for the imposition of a
constructive trust are: (1) a confidential or fiduciary relationship;
(2) a promise; (3) a transfer in reliance on that promise; and (4)
unjust enrichment (see Sharp v Kosmalski, 40 NY2d at 121; Pereira v Glicker, 61 AD3d 948; Nastasi v Nastasi, 26 AD3d 32,
37). Here, the complaint does not adequately plead a cause of action to
impose a constructive trust on the Bethpage property. While there was a
confidential relationship between the plaintiff and Galindo as 50%
shareholders in Demo, and Galindo and Madia may have been unjustly
enriched by the alleged diversion of Demo's assets, there was no
promise to either the plaintiff or Demo with respect to the Bethpage
property and no transfer of that property in reliance on any promise.
Indeed, there is no allegation that either the plaintiff or Demo had
any preexisting interest or expectation of an interest in the Bethpage
property. The complaint contains the plaintiff's acknowledgment that
Madia borrowed the money using his own credit to pay for the purchase
of the property, and it is not alleged that any assets of Demo or
personal funds of the plaintiff were used in the purchase of the
property (see Gargano v V.C. & J. Constr. Corp., 148 AD2d 417, 418—419).

Inasmuch as the cause of action seeking to impose a constructive
trust on the Bethpage property was the only cause of action in the
complaint that would affect the title to, or the possession, use or
enjoyment of that property, that branch of the defendants' motion which
was to cancel the notice of pendency should have been granted (see CPLR 6514[b]; Shkolnik v Krutoy, 32 AD3d 536, 537; Distinctive Custom Homes Bldg. Corp. v Esteves, 12 AD3d 559).

The bold is mine.

CPLR § 3026; CPLR § 6514; 22 NYCRR 130-1.1; CPLR § 5701; Standing

CPLR § 3026 Construction

CPLR § 6514 Motion for cancellation of notice of pendency

(c) Costs and expenses

22 NYCRR 130-1.1 Costs; sanctions

Congel v Malfitano, 2009 NY Slip Op 03122 (App. Div., 2nd, 2009)

On a motion to dismiss a complaint for failure to state a cause of action, the challenged [*2]pleading is to be construed liberally (see CPLR 3026; Leon v Martinez, 84 NY2d 83, 87; Bernberg v Health Mgt. Sys., 303
AD2d 348, 349). Accepting the facts alleged as true, and according the
plaintiff the benefit of every possible favorable inference, the court
must determine only whether the facts alleged fit within any cognizable
legal theory (see Leon v Martinez, 84 NY2d at 87-88; Bernberg v Health Mgt. Sys., 303
AD2d at 349). However, where, as here, the moving party has submitted
evidentiary material, the court must determine whether the proponent of
the pleading has a cause of action, not whether he or she has stated
one (see Guggenheimer v Ginzburg, 43 NY2d 268, 275; Pincus v Wells, 35 AD3d 569, 570).

The defendant waived the defense of lack of standing by failing
to raise it in his answer or in his initial moving papers to dismiss
the complaint (see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242; Lewis v Boyce, 31 AD3d 395, 396). In any event, contrary to the defendant's contention, the plaintiffs possess standing (see Benedict v Whitman Breed Abbott & Morgan, 282 AD2d 416, 418; Shea v Hambro Am., 200 AD2d 371, 372).

However, the Supreme Court should not have awarded the
plaintiffs costs and disbursements under CPLR 6514(c). CPLR 6514(c)
authorizes an award of costs and disbursements if the cancellation of
the notice of pendency is made pursuant to that section. Here, however,
the Supreme Court invoked its "inherent power," and not CPLR 6514, to
cancel the notice of pendency (see Nastasi v Nastasi, 26 AD3d 32,
36; 13-65 Weinstein, Korn, & Miller, New York Civil Practice: CPLR
¶ 6514.11 [2008]). Thus, the Supreme Court had no authority to
award costs and disbursements under CPLR 6514(c) (see Ryan v La Rosa, 22
Misc 2d 125), and the plaintiffs never requested costs pursuant to 22
NYCRR 130-1.1. Accordingly, the Supreme Court should have denied that
branch of the plaintiffs' motion.
[*3]

In order to determine the
amount of costs and disbursements to which the plaintiffs were
purportedly entitled, the Supreme Court appointed a referee and
directed the defendant to pay the referee's fee. Despite our conclusion
that the hearing should not have been held in the first instance, it
has already taken place. Accordingly, we direct the plaintiffs to pay
one half of the referee's fee and the defendant to pay one half of the
referee's fee.

CPLR § 5701 Appeals to appellate division from supreme and county courts

(a) Appeals as of right
2. from an order not specified in subdivision (b), where the motion it decided was made upon notice and it:

(v) affects a substantial right

(c) Appeals by permission

Robertson v United Equities, Inc., 2009 NY Slip Op 03149 (App. Div., 2nd, 2009)

The appeal from so much of the amended order as directed a hearing
to aid in the disposition of the motion of the defendant United
Equities, Inc., which was for an award of an attorney's fee and to
impose a sanction against the plaintiffs and/or their attorney,
pursuant to 22 NYCRR 130-1.1, is not appealable as of right, as it did
not determine that motion and did not affect a substantial right (see CPLR 5701[a][2][v], [c]; Youngquist v Youngquist, 44 AD3d 1034, 1035), and leave to appeal [*2]has not been granted from that portion of the amended order.
Furthermore, the appeal from so much of the amended order as,
sua sponte, directed dismissal of the complaint insofar as asserted
against the defendant United Equities, Inc., is not appealable as of
right, as it did not decide a motion made upon notice (see CPLR 5701[a][2], [c]; Consolidated Resources, LLC v 21-220-230 Owner's Corp., 59 AD3d 579), and leave to appeal has not been granted from that portion of the amended order.

The bold is mine.

CPLR § 6514(a); § 6514(c); § 6512

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:

A
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.