Notice of Pendency Not Properly Filed by Adjoining Owners

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The Supreme Court, Suffolk County, granted the application the Petitioner had submitted to the Town of East Hampton’s Zoning Board for approval of a subdivision map and directed the Zoning Board to grant final approval. Intervenors opposed the application, filed a notice of pendency against the subject property, and moved for a corrected judgment requiring preliminary approval prior to a grant of final approval. The Intervenors’ motion was denied.

Petitioner subsequently filed a motion for an Order cancelling the notice of pendency filed by the Intervenors. The Supreme Court granted the motion and ordered the cancellation of the lis pendens. Under Civil Practice Law and Rules Section 6501 (“Notice of pendency; constructive notice”), “[a] notice of pendency may be filed [when] the judgment demanded would affect title to, or the possession, use or enjoyment of real property...”. In this case, the Intervenors did not “assert a right, title or interest in or to Petitioner’s real property”. Further, according to the Court,

“Intervenors’ claims that they are attempting to prevent a misuse of neighboring land is disingenuous at best and without legal claim at worst. The Court finds that Intervenors have failed to file their notice of pendency in good faith; rather they filed to improperly delay the case”.

The Court also granted the Petitioner’s motion that it be awarded its costs and expenses and the attorneys’ fees it had incurred in prosecuting and defending the motion.

The Court scheduled a hearing to consider imposing sanctions against the Intervenors under 12 NYCRR Section 130-1.1 (“Costs; sanctions”) based on the Petitioner’s claim that the Intervenors’ “pattern of malicious motion practice and frivolous legal delay…has caused significant financial damage to Petitioner”. Matter of 55 Wainscott Hollow, LLC v. Planning Board of the Town of East Hampton, 2018 NY Slip Op 32873, decided October 30, 2018, is posted at http://www.nycourts.gov/reporter/pdfs/2018/2018_32873.pdf.

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