A property owner preparing to sell or refinance may discover that a notice of pendency has been filed against the property.
The notice can complicate the transaction immediately. A purchaser or lender reviewing title will see that litigation may affect the property’s ownership, possession, use, or another qualifying property interest.
A notice of pendency, often called a lis pendens, is not a money judgment or mortgage lien. It is a statutory device that gives constructive notice of certain pending litigation involving real property.
Under CPLR Article 65, it can be a powerful tool in a legitimate property dispute. It can also be challenged when the underlying lawsuit does not qualify or when statutory requirements have not been satisfied.
For businesses and property owners involved in New York business litigation, understanding the difference is important before filing or responding to a notice.
What Is a Notice of Pendency?
CPLR § 6501 permits a notice of pendency in an action where the judgment demanded would affect title to, an encumbrance on, or the possession, use, or enjoyment of real property.
The statute creates constructive notice to subsequent purchasers and encumbrancers in the circumstances described by the statute.
A person acquiring an interest after the notice has been properly filed may be bound by subsequent proceedings to the same extent specified in CPLR § 6501.
The practical purpose is to protect the effectiveness of the eventual judgment.
If a plaintiff claims the right to receive title to property, a transfer during litigation could otherwise complicate enforcement.
The notice alerts people dealing with the property that the disputed rights may be determined in the pending lawsuit.
It does not itself decide who owns the property.
Not Every Lawsuit Involving Real Estate Qualifies
The most important limitation is the nature of the relief requested.
A dispute does not qualify for a notice of pendency merely because real estate appears somewhere in the factual background.
The judgment demanded must affect the property interests identified in CPLR § 6501.
Actions seeking title or possession
An action seeking specific performance of a real estate purchase contract may qualify where the plaintiff is asking the court to require conveyance of the property.
Partition proceedings and other actions directly affecting title or possession may also involve notices of pendency.
The notice is connected to the relief sought.
Actions seeking only money
A conventional lawsuit seeking damages for breach of contract ordinarily does not qualify merely because the defendant owns valuable real estate.
For example, a contractor seeking payment under a service agreement cannot ordinarily place a notice of pendency against a customer’s property simply to obtain leverage over an unpaid invoice.
The availability of a mechanic’s lien or another statutory remedy is a separate question.
CPLR Article 65 should not be used as a substitute for judgment-enforcement procedures.
A Notice of Pendency Does Not Automatically Prevent a Sale
A notice can create serious practical obstacles to a sale or refinancing, but it is not equivalent to a court injunction.
The owner does not automatically lose legal authority to execute a deed merely because the notice was filed.
However, a purchaser or lender must consider the notice’s effect on the interest being acquired.
Title companies commonly require the issue to be resolved before insuring a transaction without exception.
That can make a notice commercially significant even before the underlying lawsuit is decided.
A party who actually needs to prevent specific conduct may have to seek injunctive relief under the applicable CPLR provisions.
The notice of pendency and an injunction serve different functions and have different requirements.
How Is a Notice of Pendency Filed?
CPLR § 6511 governs filing, content, and indexing.
The notice is filed with the clerk of a county where the affected property is located.
It may be filed before or after service of the summons and at any time before judgment, subject to the statutory requirements.
Unless the complaint has already been filed in that county, the complaint must be filed with the notice.
The notice must identify the parties, the object of the action, and the affected property.
The statute also establishes indexing requirements.
Correctly identifying the parcel is important. A notice affecting the wrong parcel, an improperly described interest, or a defendant unrelated to the asserted claim may create avoidable litigation.
A party considering a notice should review both the underlying cause of action and the property’s title information before filing.
Service of the Summons Is Critical
CPLR § 6512 imposes a significant condition on the effectiveness of a notice of pendency.
Generally, a summons must be served on the defendant within thirty days after the notice is filed.
The statute also addresses timely commencement and completion of service by publication and a particular circumstance involving a defendant who dies during the initial period.
The filing of the notice should therefore be coordinated with service of process.
A party should not file a notice and then allow the summons to remain unserved while negotiations continue.
If the statutory service requirement is not satisfied, the notice may become ineffective and subject to mandatory cancellation under CPLR § 6514.
The underlying lawsuit and the notice have related but distinct procedural requirements.
How Long Does a Notice Remain Effective?
CPLR § 6513 generally provides that a notice of pendency remains effective for three years from filing.
Before that period expires, the plaintiff may move for an extension for good cause.
The extension order must be filed, recorded, and indexed before the prior period expires.
That timing is important.
A party cannot safely assume that an expired notice can simply be revived by obtaining an order after expiration.
Counsel should calendar the expiration date immediately upon filing.
For a property owner, the filing date and any properly entered extensions should be examined before assuming that an older notice remains effective.
How Can a Property Owner Challenge the Notice?
CPLR § 6514 establishes mandatory and discretionary grounds for cancellation.
Mandatory cancellation
Under CPLR § 6514(a), the court must direct cancellation in specified circumstances, including failure to complete service within the time required by CPLR § 6512.
The statute also addresses settlement, discontinuance, abatement, and certain circumstances following a final judgment against the plaintiff.
Discretionary cancellation
CPLR § 6514(b) permits cancellation if the plaintiff has not commenced or prosecuted the action in good faith.
The owner may therefore examine whether the notice reflects a legitimate claim to property-related relief or whether the litigation is being used improperly.
The merits of the complaint, the nature of the requested relief, service, and the litigation history can all matter.
A cancellation motion should identify the actual statutory ground rather than rely solely on the inconvenience caused by the notice.
Can the Notice Be Canceled Upon Posting Security?
CPLR § 6515 provides another potential remedy.
In the actions covered by that section, the court may direct cancellation upon an undertaking when the statutory conditions are satisfied.
The court may determine that an undertaking adequately protects the plaintiff’s rights.
This can be useful when a property transaction needs to proceed and a dispute can be protected financially without maintaining the notice.
However, the statute contains exclusions, including specified foreclosure and partition proceedings.
The availability of cancellation upon security therefore depends on the type of action and the nature of the property interest being asserted.
An Improper Notice Can Have Financial Consequences
CPLR § 6514(c) authorizes the court, when canceling a notice under that section, to direct payment of costs and expenses occasioned by the filing and cancellation.
A party should therefore consider the risks before using a notice as negotiating pressure in a dispute that does not legally support one.
A notice may interfere with refinancing, prevent a contemplated closing from proceeding as planned, or generate additional litigation expense.
The existence and measure of any recoverable loss must be evaluated under the governing law and the court’s authority.
Filing a notice without a qualifying property claim can expose the filer to more than an unsuccessful procedural step.
Successive Notices Are Restricted
CPLR § 6516 restricts filing another notice after an earlier notice affecting the same property has expired, been canceled, or become ineffective.
The statute contains particular exceptions for qualifying foreclosure actions.
Those exceptions should not be assumed to apply to ordinary business or real-property disputes.
This makes compliance with the original service and extension requirements particularly important.
A plaintiff who loses the protection of a notice may not have a second opportunity to file the same notice in the same action.
Practical Considerations in a Real Estate Dispute
A plaintiff considering a notice should determine whether the requested judgment directly affects the property and whether prompt service can be completed.
A defendant confronted with a notice should obtain the complaint, the notice itself, proof of filing, service information, and any extension orders.
The parties should also consider the commercial consequences.
A real-estate dispute may be resolved through a revised closing, escrow arrangement, negotiated conveyance, settlement payment, or other transaction-specific relief.
But settlement discussions should not obscure statutory deadlines.
The notice remains a procedural device tied to the pending action, not an independent property right.
When to Speak With a New York Business Litigation Attorney
A notice of pendency should be reviewed promptly when a lawsuit seeks an interest in real property or when an unexpected filing interferes with a contemplated sale or financing.
The first review should include the complaint, notice, deed, contract or other instrument giving rise to the claimed property right, filing date, and service records.
For property disputes involving Suffolk County, Hampton Bays, the East End, and elsewhere on Long Island, information about William G. Goode’s litigation practice is available on his attorney profile, and the firm can be reached through its contact page.
References
- CPLR § 6501 – When a notice of pendency may be filed and its constructive-notice effect.
- CPLR § 6511 – Filing, contents, and indexing.
- CPLR § 6512 – Service requirements.
- CPLR § 6513 – Duration and extensions.
- CPLR § 6514 – Mandatory and discretionary cancellation.
- CPLR §§ 6515-6516 – Cancellation upon an undertaking and related restrictions.
Short FAQ
What does a notice of pendency do?
It provides constructive notice that pending litigation may affect specified rights in real property. It does not itself determine ownership.
Can someone file a notice of pendency in any breach of contract case?
No. The relief requested must affect title, an encumbrance, possession, use, or enjoyment of real property within CPLR § 6501.
How long does a New York notice of pendency last?
Generally three years. CPLR § 6513 permits extensions for good cause if the statutory requirements are satisfied before expiration.
Can a property owner have a notice canceled?
Yes, when a statutory basis exists. CPLR § 6514 provides mandatory and discretionary grounds for cancellation.
Does a notice of pendency automatically prohibit a property sale?
No. It is not an injunction, although it can materially affect title, financing, and a purchaser’s willingness to close.
Disclaimer
This article is for general informational purposes only and is not legal advice. Reading this article does not create an attorney-client relationship. Civil and commercial disputes are fact-specific, and businesses and individuals should consult with an attorney regarding their particular circumstances. Prior results do not guarantee a similar outcome. This may be considered attorney advertising.
