On November 19, 2025, the Second Department issued a decision in American Premium Realty Group, LLC v. 37-19 Realty, Inc., 2025 NY Slip Op. 06301, affirming that imposition of a $20.5 million undertaking as a condition of vacating a notice of pendency, explaining:
Prior to December 14, 2023, a notice of pendency could be filed only when the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property. When the court entertains a motion to cancel a notice of pendency in its inherent power to analyze whether the pleading complies with CPLR 6501, it neither assesses the likelihood of success on the merits nor considers material beyond the pleading itself; the court’s analysis is to be limited to the pleading’s face. However, in light of the potentially harsh consequences and relative ease of filing a notice of pendency, the courts should apply a narrow interpretation in reviewing whether an action is one affecting the title to, or the possession, use or enjoyment of, real property.
Here, on its face, the complaint seeks relief that would affect the title to, or the possession, use or enjoyment of, real property. Specifically, a cause of action for specific performance of a contract to convey land affects the title to, or possession, use, or enjoyment of, real property. The plaintiff asserted, inter alia, a cause of action for specific performance of the purchase agreement. . . . Moreover, the causes of action sounding in fraud could ultimately result in the termination of memorandum of contract being declared void and the memorandum of contract remaining in the chain of title, and such could provide a basis for the notice of pendency. Further, the memorandum of contract provided, inter alia, that the plaintiff’s deposit was made a lien on the property until a termination of memorandum of contract was filed .
Pursuant to CPLR 6515(1), the court may direct the county clerk to cancel a notice of pendency, upon such terms as are just, whether or not the judgment demanded would affect specific real property, if the moving party shall give an undertaking in an amount to be fixed by the court, and if the court finds that adequate relief can be secured to the plaintiff by the giving of such an undertaking. The fixing of the amount of the undertaking is a matter within the sound discretion of the Supreme Court.
Here, the Supreme Court providently exercised its discretion in directing WLGT to post an undertaking in the sum of $20,500,000 to secure the plaintiff’s interests and, thereafter, in declining to reduce that sum.
(Internal quotations and citations omitted).