Commercial Division Blog

Posted: November 24, 2018 / Categories Commercial, Real Property

Plaintiff Without Interest in Land Cannot File Lis Pendens

On October 30, 2018, Justice Hudson of the Suffolk County Commercial Division issued a decision in Matter of 55 Wainscott Hollow, LLC v. Planning Bd. of the Town of E. Hampton, 2018 NY Slip Op. 32873(U), holding that a plaintiff without an interest in property cannot file a lis pendens relating to that property, explaining:

CPLR § 6501. Notice of Pcndency; Constructive Notice provides. in pertinent part:

A notice of pendency may be filed in any action in a court of the state in which the judgment demanded would affect the title to, or the possession, use or enjoyment of real property. A person whose conveyance or incumbrance is recorded after the filing of the notice is bound by all proceedings taken in the action after such filing to the same extent as a party.

The notice of pendency procedure replaces the common law lis pendens, an age-old doctrine pursuant to which the very existence of a suit asserting a right to defendant's real property was constructive notice of plaintiff's pre-existing rights. The notice of pendency statutes. which first appeared in New York in 1823, modified the common law by imposing on the plaintiff the burden of filing a notice of pendency in a central registry.

The principle is as old as the court of chancery itself. that the commencement of a suit there, which is duly prosecuted in good faith and followed by a decree, is constructive notice to every person who acquires an interest from the defendant in the subject matter of the suit pendente lite, of the legal and equitable rights of the complainant as charged in the bill and established by the decree.

Despite the potentially broad reading that might be given to the terms use and enjoyment of real property, the Court has confined the notice of pendency to cases in which the plaintiff claims an interest in the defendant's land.

The cases hold that a notice of lis pendens cannot be filed where the party who has filed it claims no right, title or interest in or to the real estate against which it is filed and where the suit concerns simply some encroachment or wrong.

In the case at bar, intervenors do not assert a right, title or interest in or to Petitioner's real property. Intervenors, by their Counsel, Christopher Kelly in paragraph 7 of his affirmation in opposition states: Intervenors were critical of the layout of Petitioner's subdivision application for the property.

Notably, Intervenors fail to assert that they or any of them have any claim of right title or interest in or to the subject real property. Intervenors' opposition to Petitioner's instant motion for cancellation of the notice of pendency contains no such claim of ownership or dominion.

Although Intervenors have filed an impressive opposition to the motion, same is fatally deficient in its lack of proper justification for the filing, maintenance and continuation or its notice of pendency.

Intervenors filed notice of pendency is from its inception improper by law.

Intervenors are seeking to invoke the ancient and repudiated Doctrine of Ancient Lights. In principle, the Doctrine was pied by the landowner upon whose land the light had shone from time immemorial; in other words, don't build near my place and disturb my vista.

English Courts later phrased it thus:

A proprietor of land has no right to erect an edifice on his own ground, interfering with the due enjoyment of adjoining premises, as by overhanging them, or by throwing water from the roof and eaves upon them, or by obstructing ancient lights and windows.

The doctrine of presumption of right by grant or otherwise as applied to the windows of one person overlooking the land of another, so that by an uninterrupted enjoyment for twenty years the owner acquires a right of action against his neighbor for stopping the lights by the erection of a building upon his own land, forms no part of our law; such a rule is not adapted to the circumstances or existing state of things in this country.

In the case at bar, the subdivision plans of Petitioner have been reviewed by this Court and approved by Respondent Town of East Hampton, New York, and the decisions have been served upon Intervenors. Intervenors claim that they are attempting to prevent a misuse of neighboring land is disingenuous at best and without legal claim at worst. The Court finds that Intervenors have failed to file their notice of pendency in good faith rather they filed to improperly delay the case.

(Internal quotations and citations omitted).

We frequently litigate disputes over the sale or leasing of commercial property. Contact Schlam Stone & Dolan partner John Lundin at if you are involved in a dispute regarding a commercial real estate transaction.