In an April 8, 2011 decision by Justice Fried, the court granted the defendants’ motion pursuant to CPLR § 6501 to vacate a notice of pendency. The plaintiff formed an “Enterprise” with the defendants to engage in real estate ventures and specifically alleged in the complaint that the title to the real property was held on behalf of the Enterprise. The court found that a notice of pendency was inappropriate because the claimed interest was in a partnership or corporation that deals in real property because such interest was in personality and does not affect the title to real property. The court rejected the plaintiff’s arguments that a request to impose a constructive trust on the property established a basis for the notice of pendency, finding that under New York law, a cause of action for a constructive trust does not alone permit a filing of a notice of pendency. The court also concluded that the true action behind the plaintiff’s request for a constructive trust was to enforce the defendants’ an oral agreement to share with the plaintiff the profits and income the Enterprise had generated. Thus, the court found that the right to a constructive trust over the proceeds of the real property did not render the claim sufficient to satisfy the notice of pendency requirements.
Ostad v Nehmadi, Sup Ct, NY County, April 8, 2011, Fried, J, Index No. 650460/10