Lloyd's Shopping Centers, Inc. v. Regent Properties, Inc.

Appeal by defendant from an order granting summary judgment to the plaintiff. An examination of the complaint leaves some question as to whether the plaintiff intended to plead a cause of action pursuant to section 329 of the Real Property Law or whether it sought to remove a cloud on title pursuant to article 15 of the Real Property Actions and Proceedings Law, or both. The brief submitted on this appeal is less than helpful. Relief pursuant to section 329 is not available as an executory contract for the sale of real property may be recorded (Real Property Law, § 294) if it is in recordable form (§ 294, subd. 1). The present contract is recordable. The requirements of a complaint pursuant to article 15 of the Real Property Actions and Proceedings Law “Action to compel the determination of a claim to real property” are set forth in section 1515 thereof and while technically.the present complaint is not in full compliance therewith, the defendant has raised no question as to this aspect of the complaint. Procedurally the plaintiff is entitled to summary judgment as the opposing eonelusory affidavits are submitted by an attorney and set forth no evidentiary facts of a defective title or that the utilities are not brought to the perimeter *895of the subject matter as found by Special Term. In such circumstances, there being no question of fact, this court considers the motion papers as being in general compliance with the requirements of section 1515 above and accordingly, the defendant and every person claiming thereunder are barred from all claims to real estate or interest in the property described in the said complaint. Order modified, on the law, so as to grant relief pursuant to article 15 of the Real Property Actions and Proceedings Law, as set forth herein, and, as so modified, affirmed, with costs. ¡Settle order. Gibson, P. J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum Per Curiam.