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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: November 30, 2018

Plaintiff Without Interest in Land Cannot File Lis Pendens

On November 21, 2018, Justice Sherwood of the New York County Commercial Division issued a decision in New Journey Global Inc. v. Bohe Liu, 2018 NY Slip Op. 32921(U), holding that a plaintiff without an interest in land cannot file a lis pendens, explaining:

CPLR 6501 provides that a notice of pendency may be filed in any action in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property. Defendants have not alleged the requisite direct ownership interest in the Property.

Defendants argue they are entitled to a constructive trust. Presumably, they make this argument because a claim for a constructive trust can make an action one affecting the title to real property. However, 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 other wrong. Even if the situation were one in which the defendants sought to preserve plaintiff’s assets, the theory of preventing sales of land by defendants by a lis pendens is not that plaintiff is likely to become insolvent but rather that there is an issue affecting the title or right to enjoyment of the plaintiff’s real property. Here, there is no issue affecting the title or right to enjoyment of the property, only a claim to the constructive trust remedy. Accordingly, the notice of pendency must be lifted.

(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 jlundin@schlamstone.com if you are involved in a dispute regarding a commercial real estate transaction.

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