King v. Kohn (2d Dep’t 2026): No Notice of Pendency Where Pleading Seeks Only Damages; Former DCL § 276 Unavailable for Post–April 4, 2020 Conduct

1. Introduction

In King v Kohn (2026 NY Slip Op 05296 [2d Dept Sept. 16, 2026]), the Appellate Division, Second Department affirmed two orders of the Supreme Court, Rockland County: (i) vacating a notice of pendency filed against residential property in New City, and (ii) granting summary judgment dismissing the amended complaint as against the purchaser, defendant Isaac Gluck.

The plaintiff, Laurence King, alleged that after foreclosure and a subsequent sale by the Bank of New York Mellon to defendant Yosef Kohn, King entered a 2021 agreement with Kohn and defendant Joseph Levy to renovate the property in exchange for a share of future sale proceeds and a restriction that the property not be sold below $1.3 million without King’s written authorization. The property was ultimately sold to Gluck in January 2022 for $950,000. King claimed the sale occurred without his authorization and that he was not paid his share.

The key issues on appeal were procedural and pleading-centered: (a) whether the amended complaint supported a notice of pendency under CPLR 6501, (b) whether King could amend to assert “actual fraud” under Debtor and Creditor Law former § 276, (c) whether Gluck’s one-day-late summary judgment motion could be entertained for “good cause” under CPLR 3212(a), and (d) whether King adequately pleaded (and could sustain) fraud and civil conspiracy to commit fraud against Gluck.

2. Summary of the Opinion

  • Notice of pendency: Affirmed vacatur. The court held that, on the face of the amended complaint, the action did not seek relief that would affect title to, or possession, use, or enjoyment of, real property as required (under the pre–Dec. 14, 2023 standard discussed by the court).
  • Leave to amend: Affirmed denial of leave to add a claim under Debtor and Creditor Law former § 276 because the alleged conduct occurred after April 4, 2020, when the statute was amended; therefore the former version was inapplicable.
  • Summary judgment timing: Affirmed consideration of Gluck’s summary judgment motion despite a one-day delay, because Gluck established “good cause” for the untimeliness.
  • Merits (fraud / conspiracy): Affirmed dismissal as against Gluck. The court held the amended complaint did not adequately allege fraud against Gluck because the “fraud” allegations were duplicative of the breach of contract allegations against Kohn and Levy; without an actionable underlying tort, the civil conspiracy to commit fraud claim against Gluck necessarily failed.

3. Analysis

A. Precedents Cited

1) Notice of pendency (CPLR 6501) and narrow construction

The Second Department anchored its analysis in the modern line of cases emphasizing that a notice of pendency is a powerful device with potentially harsh consequences, and thus courts apply a narrow interpretation of CPLR 6501.

  • American Premium Realty Group, LLC v 37-19 Realty, Inc. (243 AD3d 746): Quoted for three core propositions: (i) the pre–Dec. 14, 2023 rule limiting notices of pendency to actions where the demanded judgment would affect title or possession/use/enjoyment of real property; (ii) on a motion to cancel under the court’s inherent power to assess CPLR 6501 compliance, the court looks only to the pleading’s face and does not weigh the merits or evidence outside the pleading; and (iii) because filing is easy and consequences harsh, CPLR 6501 is construed narrowly. This case functioned as the decision’s doctrinal “framework” for evaluating the notice of pendency.
  • Whelan v Busiello (219 AD3d 778): Cited alongside American Premium Realty for the same narrow-construction principle and the pre–Dec. 14, 2023 standard governing when a notice of pendency may be filed.
  • Mallek v Felmine (227 AD3d 977): Cited both for the “face of the pleading” limitation and, critically, as an example where the pleading did not seek qualifying real-property relief. The court analogized King to Mallek to support cancellation.
  • Delidimitropoulos v Karantinidis (142 AD3d 1038) and Homespring, LLC v Hyung Young Lee (55 AD3d 541): Cited as additional authority that pleadings seeking essentially monetary relief (or not properly asserting a real property claim) do not justify a notice of pendency.

How these precedents shaped the result: By treating the question as a pleading-sufficiency inquiry under CPLR 6501 (not a merits inquiry), the court could affirm vacatur without resolving factual disputes about the alleged agreement or the sale process. The precedents also signaled skepticism of notices of pendency when a plaintiff’s real objective is damages rather than a property-affecting judgment.

2) Leave to amend (CPLR 3025[b]) and statutory inapplicability

  • Egelandsdal v Massaro (243 AD3d 637): Cited for the liberal amendment standard—leave should be freely granted absent prejudice/surprise unless the amendment is palpably insufficient or patently devoid of merit.
  • Fernandez v Feoktistov (240 AD3d 575): Cited for the principle that no evidentiary showing of merit is required under CPLR 3025(b), underscoring that denial typically must rest on legal insufficiency rather than lack of proof.
  • First Natl. Bank of Long Is. v Four Keys Realty, LLC (213 AD3d 639) and Johnson v Ortiz Transp., LLC (205 AD3d 696): Cited for the proposition that the decision to grant leave to amend lies within the trial court’s discretion.
  • Pine Val. Ctr., LLC v Jacobs (237 AD3d 1115) and Kocak v Dargin (199 AD3d 456): Cited to confirm that Debtor and Creditor Law § 276 was amended effective April 4, 2020, and to support the temporal application rule the court used here.

How these precedents shaped the result: The court accepted the liberal amendment baseline but found a categorical legal defect: King sought to plead “actual fraud” under Debtor and Creditor Law former § 276 for conduct that occurred after April 4, 2020. That made the proposed claim legally unavailable, rendering it “palpably insufficient” within the meaning of the CPLR 3025(b) case law.

3) Summary judgment timing and “good cause” for lateness (CPLR 3212[a])

  • Gomez v Tilden Estates, LLC (241 AD3d 791): Cited for the proposition that courts have discretion to set summary judgment deadlines within the statutory scheme, and motions outside that structure require leave on good cause shown.
  • Brill v City of New York (2 NY3d 648): The controlling Court of Appeals authority. Quoted for the strict definition of “good cause” as a satisfactory explanation for untimeliness, not merely that the motion is strong on the merits or nonprejudicial.
  • Souffrant v M & K Real Estate Assoc., LLC (225 AD3d 914), Bik-Lung Lee v Nassau Health Care Corp. (162 AD3d 628), and Derby v Bitan (112 AD3d 881): Cited as examples where courts accepted explanations constituting “good cause,” supporting the court’s conclusion that a one-day delay, properly explained, may be excused.

How these precedents shaped the result: By invoking Brill, the court signaled it was not relaxing the “good cause” standard; it instead treated the one-day delay as excusable because Gluck offered a satisfactory explanation (the opinion does not detail it) consistent with the cited Appellate Division examples.

4) Civil conspiracy, fraud duplicative of contract, and “underlying tort” requirement

  • Clevenger v Yuzek (222 AD3d 931): Cited for the settled rule that New York does not recognize civil conspiracy to commit a tort as an independent cause of action.
  • McSpedon v Levine (158 AD3d 618): Cited to explain the limited function of conspiracy allegations—conspiracy may be pleaded to connect defendants to an actionable underlying tort and a common scheme; but it “stands or falls” with the underlying tort.
  • Olden Group, LLC v 2890 Review Equity, LLC (209 AD3d 748): Cited for the principle that fraud cannot lie where it is based on the same allegations as a breach of contract claim (i.e., duplicative fraud).
  • Orrego v Knipfing (240 AD3d 605) and Whitfield v Law Enforcement Empls. Benevolent Assn. (237 AD3d 1139): Cited as additional authority that conspiracy claims fail absent an adequately pleaded underlying tort.

How these precedents shaped the result: The court’s merits analysis for Gluck was essentially a two-step syllogism: (1) the complaint did not adequately allege fraud against Gluck because the fraud allegations were duplicative of the breach of contract allegations against Kohn and Levy (per Olden Group); therefore (2) the conspiracy claim against Gluck necessarily failed because conspiracy is not independent and requires an actionable underlying tort (per Clevenger and McSpedon).

B. Legal Reasoning

1) Why the notice of pendency was vacated

The court applied a pleading-face test: when examining whether CPLR 6501 is satisfied, the court does not evaluate the likelihood of success or consider evidence outside the pleading. Against that backdrop, and applying a narrow construction, the court concluded the amended complaint “on its face” did not seek relief affecting title or possession/use/enjoyment.

Practically, the holding reflects a familiar judicial concern: plaintiffs sometimes include a prayer for relief “to void the conveyance” as leverage while the core dispute is contractual and damages-based. The Second Department’s approach treats a bare request affecting title as insufficient unless tethered to a properly pleaded, non-incidental real-property claim that genuinely places title/possession/use/enjoyment in issue under CPLR 6501.

2) Why leave to amend to plead Debtor and Creditor Law former § 276 was denied

The denial did not turn on proof. Even under CPLR 3025(b)’s liberal standard, an amendment can be denied where it is legally unavailable. Here, the proposed claim invoked Debtor and Creditor Law former § 276, but the opinion states the alleged conduct occurred after April 4, 2020, the effective date of amendments to that section. Because the former version did not apply temporally, the proposed cause of action was “palpably insufficient.”

The decision serves as a caution that fraudulent transfer pleadings must track the correct statutory regime by date—especially important in New York given significant revisions to the Debtor and Creditor Law that took effect in 2020.

3) Why the court reached the merits of an untimely summary judgment motion

The court reaffirmed Brill v City of New York’s strict “good cause” rule: a party must explain the delay itself, not simply point to merits or lack of prejudice. It then held that Gluck’s one-day delay was supported by “good cause” consistent with Appellate Division precedent accepting adequately explained minimal delays.

4) Why claims against Gluck failed on summary judgment

On the merits, the court held the complaint did not adequately allege fraud against Gluck because the supposed fraud overlapped with the alleged contractual wrong (the sale below $1.3 million without written authorization and nonpayment of proceeds), which was fundamentally a breach-of-contract theory asserted against Kohn and Levy. Under Olden Group, LLC v 2890 Review Equity, LLC, a fraud claim cannot be sustained when it merely restates a breach of contract.

With no adequately pleaded (or sustainable) fraud tort against Gluck, the civil conspiracy to commit fraud claim necessarily collapsed: New York does not recognize conspiracy as an independent tort, and conspiracy “stands or falls” with the underlying tort (Clevenger v Yuzek; McSpedon v Levine).

C. Impact

  • Constraining notice-of-pendency leverage in contract-heavy real estate disputes: The decision reinforces that CPLR 6501 is not a tool to freeze title whenever real property is a backdrop; the pleading must genuinely seek a property-affecting judgment, and courts will construe that requirement narrowly.
  • Temporal precision in fraudulent transfer pleading: Litigants must select the correct Debtor and Creditor Law version based on the date of the challenged conduct. Attempting to plead a “former” statutory provision for post-amendment conduct risks dismissal at the pleading stage (or denial of leave to amend), irrespective of factual suspicions about wrongdoing.
  • Continued rigor on CPLR 3212 timeliness, with limited flexibility: While Brill remains strict, King illustrates that a minimal delay can be excused if the movant supplies a satisfactory explanation focused on the reason for lateness.
  • Fraud vs. contract boundary (and downstream conspiracy claims): The decision underscores a recurring pleading trap: labeling a contractual dispute as “fraud” (without distinct misrepresentations, reliance, and damages independent of the contract) can doom not only the fraud claim but also any conspiracy claim premised on it.

4. Complex Concepts Simplified

Notice of pendency (lis pendens)
A filing that warns the world a lawsuit may affect real property. It can cloud title and impede sale/refinancing. Under CPLR 6501 (as framed by the court’s “prior to December 14, 2023” discussion), it is proper only when the lawsuit demands a judgment affecting title or possession/use/enjoyment—not merely money damages.
“Face of the pleading” review
When deciding whether a notice of pendency is valid, the court generally looks only at what the complaint itself demands and alleges, not outside evidence and not the plaintiff’s likelihood of winning.
Leave to amend (CPLR 3025[b])
New York is liberal in allowing amendments. But courts deny amendments that are legally defective—e.g., relying on a statute that does not apply to the relevant time period.
“Good cause” for late summary judgment (CPLR 3212[a])
The movant must explain the delay itself with a satisfactory reason. Merits and lack of prejudice are not enough on their own (Brill v City of New York).
Civil conspiracy
Not a standalone claim in New York. It is a way to link multiple defendants to an underlying tort. If there is no viable underlying tort (here, fraud), the conspiracy claim fails.
Duplicative fraud
A fraud claim is duplicative when it merely restates a breach of contract (same facts, same harm, no independent duty or distinct misrepresentation damages). Such a fraud claim is not permitted (Olden Group, LLC v 2890 Review Equity, LLC).

5. Conclusion

King v Kohn is a procedural-and-pleading focused decision with practical consequences in real-estate-adjacent commercial disputes. The Second Department reaffirmed that notices of pendency are narrowly confined to actions genuinely seeking property-affecting judgments, that proposed amendments invoking Debtor and Creditor Law former § 276 are unavailable for post–April 4, 2020 conduct, that Brill v City of New York’s “good cause” standard governs late summary judgment motions (though minimal, explained delays may be excused), and that conspiracy claims cannot survive absent a viable underlying tort—particularly where “fraud” is merely a repackaged contract claim.