Plaintiff moves by Order To Show Cause for an order pursuant to CPLR Article 63 enjoining defendant from entering into a contract of sale or any other instrument requiring the transfer of title, selling, renting, encumbering, transferring or otherwise disposing of the real property known as 1465 East 7th Street, Brooklyn, New York, except pursuant to the terms and conditions set forth in the agreement between plaintiff and defendant executed in November, 2002.

Defendant moves by Order To Show Cause for an order pursuant to Civil Practice Law and Rules § 6512, 6514 & 3211(a)(1) (4) & (10):

(a)directing cancellation of the Notice of Pendency filed herein as in violation of

the prohibition against filing successive notices of pendency; and

(b)directing the Clerk of the County of Kings to cancel the Notice of Pendency

filed herein; and

(c)awarding sanctions against both the plaintiff and her attorney, Israel Vider,

for frivolous conduct; and

(d)awarding to defendant, Elul Diamonds, Inc., the costs and disbursements,

including attorneys' fees, of this motion as well as any costs and disbursements actually incurred in connection with the cancellation of the Notice of Pendency.

Defendant, Elul Diamonds, Inc., is the owner of the subject property, 1465 East 7th Street, Brooklyn, New York, by virtue of a deed from Joseph Cohen and Nechama Cohen (plaintiff), to defendant, Elul Diamonds, Inc., by deed dated October 30, 2002 and recorded in the Office of the City Register of Kings County on December 23, 2002 in Reel 5977 at Page 1712.

The Notice of Pendency involved herein was filed on March 3, 2004. The Summon and Complaint in the action was served on defendant Elul Diamonds, Inc., on or about March 17, 2004, by service upon the Secretary of State. This is the third Notice of Pendency filed by the Cohen's. In addition, a Notice of Pendency was filed against the same property in a companion case entitled Sara Rosen v. Elul Diamonds, Inc. (Index No. 53630/2002). (Sara Rosen is Nechama Cohen's mother).

The Summons and Complaint herein includes several causes of action which, inter alia seek the rescission of the deed and the re-conveyance of the subject property located at 1465 East 7th [*2]Street, Brooklyn, New York, to plaintiffs.

Previously, plaintiff and her husband had filed a Notice of Pendency and Summons and Verified Complaint on November 22, 2002, ( Index No. 49703/02). The Summons and Complaint therein were not served upon the defendant. Therefore plaintiff and her husband failed to comply with CPLR § 6512, which requires service upon the defendant within thirty days of the filing of the Notice of Pendency. Defendant, in that action, brought an Order To Show Cause seeking the mandatory cancellation of that Notice of Pendency due to

plaintiff's failure to comply with the statutory requirements. The action was abandoned by plaintiff.

Another Notice of Pendency against the same property was thereafter filed in an action arising out of the same facts and circumstances. (Index No. 53628/02) . Defendant, moved by Order of Show Cause in that action to have the Notice of Pendency cancelled. The Order To Show Cause was granted on March 3, 2003, by this Court.

The Notice of Pendency filed herein, in this current action by plaintiff, constitutes a successive filing, which is prohibited pursuant to CPLR § 6514.

Section 6514 of the CPLR reads in pertinent part as follows:

§ 6514. Motion of cancellation of Notice of Pendency

(a) Mandatory cancellation. The Court, upon motion of any person aggrieved and upon which such notice as it may require, shall direct any county clerk to cancel a Notice of Pendency, if service of a summons has not been completed within the time limited by section 6512...

Section 6512 of the CPLR reads in pertinent part as follows:

§ 6512 Service of summons

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.....

Strict statutory compliance is required with respect to the filing of a Notice of Pendency, and successive filings are prohibited. The plaintiff herein did not comply with the CPLR and, in connection with the first action (Index No. 49703/02) did not serve the

summons within the requisite time period. Plaintiff did not cause the summons therein to

be served at all, but chose to commence a second action seeking the same relief and to

file a second Notice of Pendency. That second Notice of Pendency has been cancelled

by this Court. The filing of this third Notice of Pendency by plaintiff in connection with this

Relevant case law also requiring the cancellation of the Notice of Pendency. In the case of Weiner v. MKVII-Westchester, LLC, et al, 292 A.D.2d 597, an action for the specific performance of a contract for the sale of real property, the defendant sought the cancellation of a Notice of Pendency filed on August 31, 2000. The Trial Court denied the motion. The Appellate Division reversed, and cancelled the Notice of Pendency, finding that the August 31, 2000 Notice of Pendency was the second Notice of Pendency which the plaintiffs had filed. A prior Notice of Pendency had been filed on June 14, 2000. The defendants had successfully moved for the mandatory cancellation of the first Notice of Pendency on the basis that the summons had not been served within thirty days of the filing of the Notice of Pendency. The Appellate Division in determining that the second Notice of Pendency should be cancelled stated in relevant [*3]part as follows:

It is undisputed that a prior Notice of Pendency regarding the same property was cancelled due to the plaintiffs' failure to serve the summons within 30 days. Successive filings of Notices of Pendency under such circumstances are improper, and the plaintiff's second Notice of Pendency may not stand.

...Thus, on the basis of the prohibition against successive filings of Notices of Pendency against the same property and relating to the same controversy, the Supreme Court should have granted the defendant's motion to cancel the second Notice of Pendency pursuant to CPLR § 6514 (a)...

In the case at bar, the second Notice of Pendency has been cancelled. The plaintiff

has filed a third Notice of Pendency, in violation of the CPLR.

The claims asserted herein are the same as those set forth in the case of Joseph

Cohen and Nechama Cohen v. Elul Diamonds, Inc., Supreme Court Kings County,

Index No. 53628/02, wherein the Notice of Pendency was cancelled.

The plaintiff cannot keep filing actions and Notices of Pendency to tie up the property.

Based upon the foregoing, the Notice of Pendency in the within action is cancelled. The Clerk of the Court is directed to cancel the Notice of Pendency, forthwith.

The branch of defendants' Order To Show Cause seeking sanctions, fees, costs and disbursements, is denied.

Plaintiff's Order To Show Cause is denied in its entirety.

This constitutes the Decision, Opinion, and Order of the Court.

Dated: May 20, 2004

______________________________

IRA B. HARKAVY

J.S.C.