Ampul Elec., Inc. v. Vill. of Port Chester

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Docket Number

Attorney(S)

The DeIorio Law Firm, LLP, Rye Brook, N.Y. (Alan Kachalsky of counsel), for appellant. DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Brian T. Belowich of counsel), for respondents.

Judges

Ruth C. Balkin

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Smart Summary

Factual and Procedural Background

The plaintiff, Ampul Electric, Inc., entered into a contract with March Associates and others to provide electrical services for a construction project that was part of an urban renewal project on property owned by the Village of Port Chester Industrial Development Agency. In February 2006, Ampul Electric filed a mechanic's lien claiming unpaid contractual payments and commenced an action in October 2006 to foreclose on the lien and to recover damages for breach of contract and unjust enrichment. Concurrently, the plaintiff filed a notice of pendency in October 2006.

In October 2008, March Associates filed for bankruptcy, triggering an automatic stay of proceedings against it. The Supreme Court issued an order on March 24, 2009, staying the action pending updates on the bankruptcy status. In June 2010, the plaintiff withdrew its claims against March Associates in bankruptcy court and moved in July 2010 to extend the notice of pendency nunc pro tunc. The defendants cross-moved to cancel the notice of pendency on the basis that more than three years had passed since its filing. The Supreme Court denied the plaintiff’s motion to extend and granted the defendants’ motion to cancel the notice of pendency. The plaintiff appeals this portion of the order.

Legal Issues Presented

Whether the plaintiff was entitled to an extension of the notice of pendency nunc pro tunc after its expiration.
Whether the Supreme Court properly granted the defendants’ motion to cancel the notice of pendency pursuant to CPLR 6514.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Sakow, 97 N.Y.2d 436, 741 N.Y.S.2d 175, 767 N.E.2d 666	A notice of pendency is valid for three years and may only be extended upon a showing of good cause before expiration; a lapsed notice is a nullity.	The court applied this principle to hold that the plaintiff’s failure to timely move for extension rendered the notice of pendency invalid.
MCK Bldg. Assoc. v. St. Lawrence Univ., 5 A.D.3d 911, 773 N.Y.S.2d 475	A lapsed notice of pendency cannot be revived.	Supported the court’s conclusion that the expired notice could not be extended nunc pro tunc.
Modular Steel Sys. v. Avlis Contr., Corp., 89 A.D.2d 891, 453 N.Y.S.2d 455	Reinforces that a lapsed notice of pendency is void and cannot be revived.	Further confirmed the court’s ruling to cancel the notice of pendency.

Court's Reasoning and Analysis

The court reasoned that under CPLR 6513, a notice of pendency is valid for three years from the date of filing and may only be extended for additional three-year periods upon a showing of good cause, with the extension motion required prior to expiration. The court emphasized the strict nature of this rule, holding that a notice of pendency that has expired without extension is a nullity and cannot be revived. Because the plaintiff failed to move to extend the notice before its expiration in October 2009, the court correctly denied the motion to extend nunc pro tunc and properly granted the defendants’ motion to cancel the notice pursuant to CPLR 6514. The bankruptcy stay and subsequent withdrawal of claims did not alter the strict timing requirements for extending the notice of pendency.

Holding and Implications

The court affirmed the order denying the plaintiff’s motion to extend the notice of pendency and granting the defendants’ motion to cancel the notice of pendency, with costs.

The direct effect of this decision is that the plaintiff’s notice of pendency is null and void, removing any cloud on title that the notice may have created. The opinion does not establish new precedent but reinforces the strict procedural requirements and timing for extending a notice of pendency under CPLR 6513.

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AMPUL ELECTRIC, INC., appellant, v. VILLAGE OF PORT CHESTER, et al., respondents.

RUTH C. BALKIN

The DeIorio Law Firm, LLP, Rye Brook, N.Y. (Alan Kachalsky of counsel), for appellant. DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. ( Brian T. Belowich of counsel), for respondents.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.

In an action, inter alia, to foreclose a mechanic's lien filed in connection with certain real property, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (O. Bellantoni, J.), entered December 20, 2010, as denied that branch of its motion which was to extend a notice of pendency and granted that branch of the defendants' cross motion which was pursuant to CPLR 6514 to cancel the notice of pendency.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff entered into a contract with, among others, the defendant March Associates to provide electrical services for a construction project which was part of an urban renewal project located on certain property owned by the defendant Village of Port Chester Industrial Development Agency. In February 2006 the plaintiff, claiming that contractually owed payments remained outstanding and owing to it, filed a mechanic's lien and, in October 2006, commenced this action to foreclose on the mechanic's lien, as well as to recover damages for breach of contract and unjust enrichment. The plaintiff also filed a notice of pendency in October 2006.

In October 2008 March Associates filed for bankruptcy, resulting in an automatic stay as to all proceedings against it. In an order dated March 24, 2009, the Supreme Court, inter alia, stated that “in the interests of judicial economy, at the request of the parties and in the discretion of the Court, the Court hereby stays this action ... pending further advisement of the attorneys of the status of the March [Associates] bankruptcy proceeding.”

In June 2010 the plaintiff withdrew its claims against March Associates in the Bankruptcy Court and, in July 2010, the plaintiff moved in the Supreme Court to, among other things, extend the notice of pendency nunc pro tunc. Since more than three years had passed since the filing of the notice of pendency, the defendants cross-moved, inter alia, to cancel it. The Supreme Court denied the plaintiff's motion, and granted that branch of the defendants' cross motion which was to cancel the notice of pendency.

Pursuant to CPLR 6513, a “notice of pendency is valid for three years from the date of filing and may be extended for additional three-year periods upon a showing of good cause. The extension, however, must be requested prior to the expiration of the prior notice. This is an exacting rule; a notice of pendency that has expired without extension is a nullity” (Matter of Sakow, 97 N.Y.2d 436, 442, 741 N.Y.S.2d 175, 767 N.E.2d 666 [citation and internal quotation marks omitted] ). A lapsed notice of pendency may not be revived ( see MCK Bldg. Assoc. v. St. Lawrence Univ., 5 A.D.3d 911, 773 N.Y.S.2d 475;Modular Steel Sys. v. Avlis Contr., Corp., 89 A.D.2d 891, 453 N.Y.S.2d 455). Since the plaintiff failed to move to extend the notice of pendency prior to its expiration in October 2009, the Supreme Court properly denied that branch of the plaintiff's motion which was to extend the notice of pendency and properly granted that branch of the defendants' cross motion which was to cancel the notice of pendency ( seeCPLR 6513).