On August 16, 2023, the Second Department issued a decision in Whelan v. Busiello, 2023 NY Slip Op. 04334, holding that a notice of pendency was improper because it did not relate to the possession, use or enjoyment of, real property, explaining:
A notice of pendency may be filed in any action in a court of the state or of the United States in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property. The usual object of filing a notice of lis pendens is to protect some right, title or interest claimed by a plaintiff in the lands of a defendant which might be lost under the recording acts in event of a transfer of the subject property by the defendant to a purchaser for value and without notice of the claim. A reviewing court has the inherent power to vacate a notice of pendency that does not comport with CPLR 6501.
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. In other words, 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, the complaint on its face does not seek relief that would affect the title to, or the possession, use or enjoyment of the defendant’s property. The plaintiffs’ causes of action sounding in nuisance merely seek to prevent the defendant from committing a wrongful act against the plaintiffs’ property or the waterways generally, and therefore the filing and prosecution of the notice of pendency was improper. Since the complaint did not seek to impose a restriction on the defendant’s use or enjoyment of the property within the meaning of CPLR 6501, the Supreme Court correctly utilized its inherent power to vacate the notice of pendency.
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Pursuant to 22 NYCRR 130-1.1(a), a court, in its discretion, may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct. Conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false. Here, the Supreme Court providently exercised its discretion in granting that branch of the defendant’s motion which was to impose a sanction upon Weiss for frivolous conduct related to the prosecution of the notice of pendency.
(Internal quotations and citations omitted).