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CPLR ' 6501 in Mortgage Foreclosure Actions and RPL ' 290 Short-term Leases

By ALM Staff | Law Journal Newsletters |
April 28, 2009

This author previously suggested consideration of amending CPLR ' 6501. See Sharrow, “A Possible Need to Amend CPLR ' 6501,” New York Real Estate Law Reporter, Vol. 19, No. 11, Oct. 2005, p. 1, questioning what happens to a properly filed Notice of Pendency (the “N/P”) when the plenary action in which the N/P was filed is converted into a landlord-tenant summary proceeding to recover real property (the “S/P-R”). The article herein addresses an additional reason for amending CPLR ' 6501, to wit: whether a properly filed N/P in a mortgage foreclosure plenary action binds to its results a later created interest in the subject realty evidenced by any type of lease or other possessory interest agreement for a term of less than three (3) years.

Presently, CPLR ' 6501 disallows filing of a N/P in any S/P-R, but does permit a N/P in any landlord-tenant or other plenary action seeking possession of realty. Both involve claims of use, possession or enjoyment of demised premises, but only the plenary action permits filing a N/P. The prohibition against filing a N/P in a S/P-R applies whether the claimed entitlement to recover/enjoy/possess the subject realty is based upon an oral or written agreement for any interest in the real estate and/or merely an implied agreement for just a one month time period; or, if not written, having the maximum duration allowable by the applicable Statute of Frauds. Gen'l Obl. L. ' 5-703.

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