The following electronically filed papers were read upon this motion: Notice of Motion/Order to Show Cause 1-9 Answering Papers 12 Reply 13 Decision/Order The defendants move this Court for an Order pursuant to CPLR §6514 (a) cancelling the notice of pendency filed by plaintiff based on plaintiff’s failure to serve process and the notice of pendency upon the defendants as required by CPLR §6512 and dismissing the complaint. The plaintiff opposes the requested relief. Background The defendants’ submissions include contracts of sale executed by the defendants and the Town of Southampton in May 2019 related to several parcels of vacant land and an email to defendants’ counsel from the attorney for the Town. The defendants apparently intended to sell those vacant parcels of land to the Town, and they were set to close on June 26, 2020. On June 17, 2020, defendants’ counsel received an email from the Town’s attorney stating that she (Lisa Clare Kombrink, Esq.) received a call from Tela Troge “from the Shinnecock Nation this afternoon to tell me they are filing an action today to quiet title and that they will be filing a lis pendens against the properties. She said the Nation believes this is their land. We can chat Thursday if you are around, but I guess we will not be closing this next week. I feel bad for the Holzmans. Talk soon — Lisa.” Accordingly, the closing did not occur on June 26, 2020. On July 23, 2020, defendants’ counsel was notified by counsel for the abstract service that the lis pendens were filed against all of the properties that were contemplated to be sold; therefore, to date, the defendants have not been able to sell those properties. The instant motion was made on October 5, 2022. Cancellation of the Notice of Pendency and Dismissal of the Complaint are Required In support of the instant motion, defendants’ counsel, who also represented the defendants in the thwarted real estate transaction with the Town, submits his own affidavit annexing the contracts of sale, the email from the Town’s attorney, and the email and abstract service report showing the lis pendens filed against the properties. Counsel attests that the defendants were never served with any notice of pendency, nor were they served with the summons and complaint. Apparently, defendants’ counsel and the defendants only found out about the lis pendens through the email from the Town’s attorney. CPLR §6512 provides in relevant part that, “[a] notice of pendency is effective only if, within thirty days after filing, a summons is served upon the defendant or first publication of the summons against the defendant is made pursuant to an order and publication is subsequently completed.” Failure to comply with this statute operates automatically to render the notice of pendency ineffective, but a motion to cancel the notice of pendency is permitted in order to eliminate the possibility of a cloud on title, and “makes good sense because a title searcher would not likely know that a notice of pendency had become ineffective as a result of late service of process” (Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR C6512; NYCTL 1999-1 Trust v. Chalom, 47 AD3d 779 [2d Dept 2008]; Rabinowitz v. Larkfield Building Corp., 231 AD2d 703 [2d Dept 1996]). “The time limit of CPLR 6512 operates independently of the 120-day period for serving process that runs from the initial filing of the summons and complaint…In cases involving the filing of a notice of pendency, there must be compliance with both time periods” (Vincent C. Alexander, Practice Commentaries, supra). CPLR §306-b provides in relevant part that “[s]ervice of the summons and compliant…shall be made within one hundred twenty days after the commencement of the action…If service is not made upon a defendant as provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service” Here, the Court’s review of the files maintained by the Suffolk County Clerk on NYSCEF confirms defendants’ counsel’s affidavit by demonstrating that the plaintiff filed the summons and complaint, together with the notice of pendency related to the subject properties, on June 25, 2020. There is not a shred of evidence appearing on NYSCEF in the form of an affidavit of service attesting that the defendants were served with process and/or that the defendants were ever served with the notice of pendency. Nor is there any motion filed on NYSCEF requesting an extension of time to serve the defendants with the summons and complaint. Thus, it is evident that for more than two years the plaintiff took no action on its claims until it responded to the instant motion made by the defendants. In opposition to the instant motion, plaintiff’s counsel submits a brief affirmation and no exhibits or evidentiary support of any kind. Plaintiff’s counsel completely fails to respond to defendants’ statements that they were never served with the summons and complaint or with the notice of pendency, or to defendants’ arguments that the lis pendens should be cancelled and the complaint dismissed; therefore, in the absence of the plaintiff challenging the established lack of service as sworn to by defendants’ counsel and confirmed by NYSCEF, plus the failure to address defendants’ arguments that the lis pendens should be cancelled and the complaint dismissed pursuant to the applicable statutes, the plaintiff has, in effect, conceded that those facts and the correctness of defendants’ legal arguments (Kuehne & Nagel, Inc. v. Baiden, 36 NY2d 539 [1975]; Weldon v. Rivera, 301 AD2d 934, 935 [3d Dept 2003]; Cole v. Blackwell Fuller Music Publishing, LLC, 2018 WL 4680989 [SDNY 2028]; Springer v. Keith Clark Publishing Co., 191 AD2d 922 [3d Dept 1993]; Calautti v. Grados, 32 Misc3d 1205 [A] [Sup Ct Westchester County 2011]). Accordingly, the notice of pendency is hereby cancelled pursuant to CPLR §§6512 and 6514 (a), and the complaint is dismissed pursuant to CPLR §306-b. Defendants’ request to have plaintiff reimburse defendants for property taxes paid on the properties from June 26, 2020, plus costs and sanctions, is denied. The foregoing constitutes the Decision and Order of this Court. FINAL DISPOSITION [ X ] NON-FINAL DISPOSITION [ ] Dated: March 9, 2023
