Discretionary Cancellation of Lis Pendens: The Inherent-Power Doctrine Reaffirmed in Zwickel v. Underhill Land LLC

Introduction

Zwickel v. Underhill Land LLC (2025 NY Slip Op 02384) is a Third Department decision that clarifies the interplay between a court’s inherent power to cancel a notice of pendency (lis pendens) and the statutory discretionary cancellation and cost-shifting mechanism found in CPLR 6514(b)-(c).

At its core, the case arose from a property-line dispute in the Town of Catskill, Greene County, where the trustees of the Renee Zwickel Trust (“Plaintiffs”) sued various adjacent landowners and a construction company (“Defendants”) alleging trespass, negligence, unjust enrichment, and violations of the Real Property Actions and Proceedings Law (RPAPL). While the merits center on an easement over an old track servicing several lots, the appeal concerned a procedural weapon—the notice of pendency—and whether Plaintiffs filed it in bad faith. The Underhill entities (“Underhill Defendants”) sought cancellation under CPLR 6514(b) and the imposition of sanctions and costs under CPLR 6514(c) and 22 NYCRR 130-1.1. The Supreme Court cancelled the notices but relied on its inherent power rather than §6514(b) and refused to grant sanctions. On appeal, the Underhill Defendants argued that the lower court abused its discretion by sidestepping §6514(b). The Appellate Division affirmed, thereby cementing important guidance on when, how, and with what consequences a court may cancel lis pendens.

Summary of the Judgment

Supreme Court properly cancelled the notices of pendency because Plaintiffs’ complaint, on its face, did not affect title, possession, or use of the Underhill lots as required by CPLR 6501.
The court was entitled to rely on its inherent power—as distinct from CPLR 6514(b)—to cancel the notices, even though Defendants explicitly invoked §6514(b).
Because the cancellation was predicated on inherent authority, the cost-shifting provision of CPLR 6514(c) was unavailable; therefore, Supreme Court lacked statutory authority to award costs or attorneys’ fees tied to the cancellation.
The Appellate Division found no abuse of discretion in denying sanctions under 22 NYCRR 130-1.1; Plaintiffs’ filings, while ultimately defective, were not frivolous or made in bad faith.
The order was unanimously affirmed with costs against the Appellants.

Analysis

A. Precedents Cited and Their Influence

Matter of Sakow, 97 NY2d 436 (2002) – Reiterated that lis pendens is an “extraordinary privilege” affecting alienability of land; cited to underscore the need for careful scrutiny.
5303 Realty Corp. v. O & Y Equity Corp., 64 NY2d 313 (1984) – Provided foundational principles on the impact of lis pendens, shaping the court’s cautionary approach.
Delidimitropoulos v. Karantinidis, 142 AD3d 1038 (2d Dept 2016) – Held that courts may cancel notices under inherent power by evaluating the pleading’s face; quoted for analytical methodology.
Elganto, LLC v. 1428 Fulton St., LLC, 219 AD3d 462 (2d Dept 2023) – Confirmed that costs under §6514(c) are unavailable when cancellation rests on inherent power; directly dispositive on the cost issue.
Nastasi v. Nastasi, 26 AD3d 32 (2d Dept 2005) – Stated that §6514(b) is permissive, not mandatory, even when bad faith exists; furnished textual support for Supreme Court’s discretion.
CFJ Assoc. of N.Y. v. Hanson Indus., 260 AD2d 917 (3d Dept 1999) – Cited for the good-faith standard under §6514(b).
Multiple sanction cases (Collyer v. LaVigne, Bank of N.Y. Mellon v. Moon) guided the frivolous-conduct analysis under 22 NYCRR 130-1.1.

The citations collectively illustrate a consistent line: courts possess both statutory and inherent pathways to cancel lis pendens, and the choice of pathway has direct consequences on fee-shifting. By synthesizing these authorities, the Third Department fortified the doctrinal divide between the two mechanisms.

B. Legal Reasoning

Scope of Pleading Test (CPLR 6501)
Under Delidimitropoulos, the inquiry is confined to the four corners of the complaint; no external evidence is weighed. The court confirmed that Plaintiffs claimed no ownership interest or right that would alter title or possession of the Underhill lots; thus, the notices were defective.
Election Between Inherent Power and §6514(b)
While Defendants invoked §6514(b) (“lack of good faith”), the court opted for the inherent-power route. The Appellate Division stressed the permissive language—“may” not “shall”—in §6514(b), leaving the procedural avenue to the court’s discretion. Crucially, picking inherent power did not preclude the court from evaluating bad faith or frivolity for sanction purposes.
Costs and Sanctions
Citing Elganto, the court held that because cancellation was not under §6514(b), the cost-shifting clause in §6514(c) could not be triggered. As for separate sanctions, the court applied 22 NYCRR 130-1.1 and found Plaintiffs’ conduct not “completely devoid of merit.” Hence, no sanctions or counsel fees.

C. Impact on Future Litigation

The decision has both practical and doctrinal reverberations:

Strategic Pleadings – Litigants seeking costs under §6514(c) must explicitly persuade the court to cancel under §6514; otherwise, inherent-power cancellation will foreclose fee recovery.
Judicial Economy – Courts may more confidently invoke inherent power without fear of reversal, streamlining cancellation motions where the pleadings are facially deficient.
Good-Faith Standard Clarified – The ruling reiterates that bad-faith cancellation is discretionary; even a finding of questionable motives does not compel §6514(b) relief.
Sanctions Threshold Affirmed – Filing a lis pendens that turns out to be improper but arguable does not necessarily constitute frivolous conduct, preserving a margin for zealous advocacy.
Title Companies & Transactional Counsel – Will scrutinize whether a cancellation order stems from inherent power or §6514 when advising on indemnities and escrow arrangements for pending real-estate deals.

Complex Concepts Simplified

Lis Pendens (Notice of Pendency): A statutory filing that alerts the world that litigation may affect specific real property. It cloud’s the property’s title, deterring sales or financing until the lawsuit ends or the notice is cancelled.
CPLR 6501 vs. 6514: 6501 authorizes filing a lis pendens when the lawsuit seeks a judgment affecting title, possession, or use.
6514 governs cancellation: (a) mandatory grounds; (b) discretionary bad-faith grounds; (c) cost-shifting to the filer when cancellation is under 6514(a) or (b).
Inherent Power to Cancel: Separate from the statute, every court possesses an equitable authority to vacate a lis pendens when the underlying pleading fails to meet §6501 on its face.
Frivolous Conduct (22 NYCRR 130-1.1): Actions that are completely without merit or are undertaken primarily to delay or harass. Sanctions range from monetary fines to fee-shifting.
Easement: A non-possessory right to use another person’s land for a specific purpose (e.g., walking path, driveway).

Conclusion

Zwickel v. Underhill Land LLC furnishes a clear blueprint for courts and practitioners navigating lis pendens disputes. The Third Department unequivocally:

Affirms that a court may, in its discretion, cancel a notice of pendency under its inherent power, independent of CPLR 6514(b);
Holds that costs under §6514(c) are unavailable when cancellation proceeds under inherent power;
Reasserts the high bar for labeling conduct “frivolous” under 22 NYCRR 130-1.1.

The ruling balances two policy objectives: safeguarding property alienability against groundless claims while preserving litigants’ latitude to pursue colorable, if ultimately unsuccessful, theories. By disentangling procedural vehicles and their fiscal consequences, Zwickel will guide trial courts’ discretion and inform litigants’ strategic calculus across New York real-property litigation.