Interboro Operating Corp. v. Commonwealth Security & Mortgage Corp.
Cases that cite this one
28 later published cases cite this decision. The 25 that cite it most often are listed here.
- Richard J. Zitz, Inc. v. Pereira (District Court, E.D. New York 1997)
- S. Utsunomiya Enterprises, Inc. v. Moomuku Country Club (Haw. 1994)
- American Motor Club, Inc. v. Neu (In re American Motor Club, Inc.) (United States Bankruptcy Court, E.D. New York 1990)
- 5303 Realty Corp. v. O & Y Equity Corp. (N.Y. 1984)
- In re Ross Development Co. (District Court, E.D. New York 1952)
- Neng Duan Lin v. 111-38 Management Corp. (New York Supreme Court 2009)
- Tilden Development Corp. v. Nicaj (Appellate Division of the Supreme Court of New York 2008)
- 551 West Chelsea Partners v. 556 Holding (Appellate Division of the Supreme Court of New York 2007)
- Doyle v. Hafner (New York Supreme Court 2006)
- Wilson v. Power House Development Corp. (Appellate Division of the Supreme Court of New York 2004)
- Bonded Concrete, Inc. v. Johnson (Appellate Division of the Supreme Court of New York 2001)
- Rajic v. Sarokin (Appellate Division of the Supreme Court of New York 1995)
- Martin v. 352 Cathedral Equities, Inc. (Civil Court of the City of New York 1988)
- Macho Assets, Inc. v. Spring Corp. (Appellate Division of the Supreme Court of New York 1987)
- Robert Fiance Hair Design Institute, Inc. v. Concourse Properties Co. (Appellate Division of the Supreme Court of New York 1987)
- Hercules Chemical Co. v. VCI, Inc. (New York Supreme Court 1983)
- Twaite v. Buckhorn Estates, Inc. (Appellate Division of the Supreme Court of New York 1981)
- Raben v. Overseas Barters, Inc. (New York Supreme Court 1967)
- Elna Construction Co. v. Flynn (New York Supreme Court 1963)
- Sobieski v. North Division Holding Corp. (New York Supreme Court 1963)
- Weisinger v. Berfond (Appellate Division of the Supreme Court of New York 1960)
- Schuman v. O'Day (New York Supreme Court 1959)
- Tinkess v. Burns (New York Supreme Court 1959)
- Seawane Greens, Inc. v. Bailey (New York Supreme Court 1958)
- Goldman v. West Holding Corp. (New York Supreme Court 1950)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion of the Court
A contract between these parties for the sale and purchase of real property provides that all sums paid on account and the reasonable expense of examining title are made liens. After plaintiff as vendee had made a down payment to defendant as vendor and had incurred expenses for examining the title, it rescinded the contract on the ground of fraud and brought this action for the purpose of foreclosing its vendee’s lien and filed a notice of lis pendens. Defendant moved to cancel the notice on the ground that this action is not one to recover a judgment affecting the title to real property. At Special Term the motion was denied but the Appellate Division reversed on the law and certified to this court the question: “ Should the defendant’s motion to cancel the notice of pendency of action have been granted? ”
Section 120 of the Civil Practice Act authorizes the filing of a notice of Us pendens in an action brought to recover a judgment affecting the title to, or the possession, use or enjoyment of real property. If the purpose of this action, as disclosed by the complaint, is to foreclose a lien on real property, then certainly this is such an action as falls within the contemplation of section 120. Perusal of the allegations of the complaint leaves no room for *59 doubt that the purpose of this action is the foreclosure of a lien on real property and, therefore, that it is an action brought to recover a judgment affecting the title to real property. The Appellate Division based its reversal on the ground that plaintiff, having rescinded and repudiated the contract for fraud at its inception, cannot have a lien on the premises and relied for this proposition on the decisions by this court in Elterman v. Hyman (192 N. Y. 113) and Davis v. Rosenzweig Realty O. Co. (192 N. Y. 128). Whether this court, when the question is properly presented, will regard these cases as controlling in their application to the case at bar is a question in which some doubt may be involved. Yet even if accepted as binding precedents on the merits, the question is not now before us. The ultimate result of litigation may not be decided on an interlocutory motion of this character. Since the purpose of the action is one enumerated in section 120 of the Civil Practice Act, the notice of pendency may not be canceled for the reason that a court, looking into the future, may conclude that plaintiff will not on the merits finally prevail. So long as this action is pending, the notice may not be canceled. (Mills v. Bliss, 55 N. Y. 139; Schomacker v. Michaels, 189 N. Y. 61, 65; Beman v. Todd, 124 N. Y. 114; St. Regis Paper Co. v. Santa Clara Lumber Co., 62 App. Div. 538.)
The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division. The question certified should be answered in the negative.
Crane, Ch. J., Lehman, Hubbs, Crouch, Loughran and Finch, JJ., concur.
Ordered accordingly.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.