DECISION /ORDER Before the court are two contested motions filed incident to a turnover proceeding initiated by the temporary administrator against the trustee of decedent’s inter vivos trust seeking the transfer of decedent’s town house out of a trust and into decedent’s estate.In the first motion, the trustee and the temporary administrator (the “fiduciaries”), seek to vacate a notice of pendency filed on August 31, 2015, by two individuals claiming ownership of decedent’s townhouse : one as beneficiary of a constructive trust and/or common law spouse; the other as decedent’s first cousin once removed/putative sole distributee (“claimants”). In the second motion claimants oppose vacatur and seek an order extending the term of the notice for an additional three years.The grounds upon which the fiduciaries seek to vacate the notice of pendency are twofold. First, they argue that the claimants lack standing to seek relief in the turnover proceeding. The claimants counter that, as parties claiming ownership of the townhouse, they are interested in the proceeding to determine whether the town house is a trust asset or an asset of the estate.The fiduciaries are hard pressed to argue that the claimants have no interest in the turnover proceeding. Ironically, the fiduciaries’ own conduct provided the claimants with the requisite interest when they asked the court to so order a stipulation that purported to settle the turnover dispute by extinguishing the claimants’ ownership claims even though they were not parties to the agreement. Accordingly, the claimants have standing to participate in the turnover proceeding which may affect their ownership interests.The fiduciaries’ second ground for vacatur is sound. They contend that, after the claimants filed the first notice of pendency in 2012 on the subject property, the subsequent filing of the 2015 notice violated the statutory prohibition against filing successive notices of pendency (see, CPLR 6516 [c]).The 2012 notice of pendency was filed by the claimants asserting their claims of ownership against the same property in an action in the Supreme Court, New York County. That action was transferred here with the 2012 notice of pendency intact. However, the claimants allowed it to expire (CPLR 6513).The fiduciaries argue that after the claimants allowed the 2012 notice to expire, they made a transparent attempt to avoid the prohibition against successive filings by filing a subsequent notice of pendency in the turnover proceeding.DiscussionThe purpose of a notice of pendency is to give constructive notice to a purchaser from any defendant named in the notice that there is a competing claim to ownership of the subject property (CPLR 6501). Because of the ease with which it can be used and the powerful effect it has on the alienability of property without prior judicial review, the right to file such notice is considered an extraordinary privilege which demands strict compliance with the requirements of Article 65 of the CPLR (see Matter of Sakow, 97 NY2d 436[2002]; Israelson v. Bradley, 308 NY 511 [1955]; Old World Custom Homes, Inc. v. Crane, 33 AD3d 600 [2006].An extension of the three year term of a notice of pendency must be obtained prior to expiration of the three year period and upon a showing of good cause (CPLR 6513). This has been held to be an exacting rule (see, Matter of Sakow, 97 NY2d 436[2002].With the one exception of a foreclosure action, CPLR 6516 (c) prohibits filing a notice of pendency in any action in which a previously filed notice of pendency affecting the same property had been previously cancelled, vacated, or had expired. Thus, the court is powerless to permit the filing of successive notices where a prior lapse has occurred. (see, Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 6513). This provision, known as the “no second chance” rule, coupled with the strict requirement that renewal must be obtained before the three year term expires, evinces a legislative policy of minimizing the longevity of clouds on title (Matter of Sakow, 97 NY 2d 436). If the terms of the statute are not met, the privilege has ended and a further grant of power to file a new notice for the same cause must be denied (Israelson v. Bradley, 308 NY 511,515-516).When the ownership issues raised by the claimants in their Supreme Court complaint were referred to this court, their unexpired 2012 notice of pendency continued here. The claimants had the opportunity and responsibility to timely extend its term (Old World Custom Homes, Inc. v. Crane, 33 AD3d 600 [2006]). Their attempt to obfuscate the issues by filing the successive notice of pendency in a different estate proceeding is unavailing. Whether the turnover proceeding, although in the same estate as, and related to, the transferred action, is in essence a separate proceeding, is not the proper focus here. The question here, where the claimants, property, and controversy are the same, is whether the filing in 2015 “evinced an attempt to abuse the privilege of filing a notice of pendency” (Tavitan v. Tavitan, 83 AD3d 1045,1046 (holding that the no second chance rule applied in a subsequent action; Deutsch v. Grunwald, 63 AD3d 872 [2009]; Old World Custom Homes, Inc v. Crane, 33 AD3d 600 [2006]).In this instance, the filing of the 2015 notice of pendency “evinced an attempt to abuse the privilege of filing a notice of pendency” (Tavitan v. Tavitan, 83 AD3d at 1046; Weiner v. Mkvii-Westchester, 292 AD2d 597 [2002]). To allow the filing of the subsequent notice of pendency by the same parties against the same property in the same estate “renders the time limit in CPLR 6513 useless and undercuts an important incentive for diligent practice” (Matter of Sakow supra, at 443).Accordingly, the fiduciaries’ motion to vacate the subsequent notice of pendency is granted. Claimants’ application for an extension is therefore rendered moot, and it isORDERED that the notice of pendency filed with the New York County Clerk on August 31, 2015 is hereby vacated.Dated: August 16, 2018
