GREGDON CORP. v. FIERRO

MARKOWITZ, J.

Motion for an order canceling notice of pendency of an action. The defendant is the owner of premises immediately adjoining the premises of the plaintiff. The complaint alleges that the defendant heretofore erected a building on his premises, the easterly wall of which rests on footings which encroach upon the plaintiff's premises to the extent of at least seven inches; that the defendant has no right, title or interest to that portion of plaintiff's premises; that the encroachment is unlawful, depreciates the plaintiff's property and renders it less valuable. The plaintiff seeks a mandatory injunction to compel the removal of the encroaching wall and to restore the plaintiff to possession of the premises encroached upon. The action is not one affecting the title to real property or any interest therein. The title of the defendant to the property described in the notice is not questioned. The plaintiff does not make any claim to it nor to its use, possession or enjoyment. ( McManus v. Weinstein, 108 A.D. 301.) Accordingly, the complaint fails to state a cause of action affecting real property within the purview of section 120 of the Civil Practice Act authorizing the filing of a lis pendens. ( Starkie v. Nib Constr. Corp., 235 A.D. 699.) Motion is granted.