In a September 20, 2011, decision by Justice Warshawsky, the court denied plaintiff-contractor’s motion for an order directing the clerk of court to accept and file a notice of pendency and granted defendant-owners’ corresponding motion to preclude the filing of the notice. The court also denied plaintiff’s request for injunctive relief but otherwise denied defendants’ motion to dismiss the complaint under CPLR 3211 [a] [1] based on documentary evidence. Plaintiff performed $2.5 million of construction services for which it was not paid, obtained a judgment, and sought recovery in connection with certain real property owned by defendants. Plaintiff claimed to have acquired an interest in the limited liability company that owned the property and attempted to file a notice of pendency against the property. The court held, however, that under LLCL § 601 membership interest in an LLC “is personal property and does not give a member interest in specific property of the limited liability company” and decided the parties’ lis pendens motions accordingly. The court then denied defendants’ motion to dismiss based on a sworn statement from the LLC member from whom plaintiff allegedly acquired his interest, finding that “the documentary evidence is convincing, but not conclusive on the subject of relationship between [the owners of the property].”
Born To Build v Saleh, Sup Ct, Nassau County, September 20, 2011, Warshawsky, J., Index No. 9558/2011