Plaintiffs, NYCTL 1998-1 TRUST AND THE BANK OF NEW YORK AS COLLATERAL AGENT AND CUSTODIAN, move, in this foreclosure action on a tax lien certificate for premises located at 121 Powell Street, Brooklyn, New York (Block 3712, Lot 17, County of Kings), for an order extending the notice of pendency, which was filed in the Office of the Kings County Clerk on November 23, 2005. The notice of pendency, pursuant to CPLR § 6513, expired three years later, on November 23, 2008. The instant motion is denied. However, plaintiffs have leave to file a new notice of pendency before proceeding any further in this tax lien foreclosure action.

CPLR § 6513, "Duration of Notice of Pendency," states

A notice of pendency shall be effective for a period of three

years from the date of filing. Before expiration of a period or

extended period, the court, upon motion of the plaintiff and upon

such notice as it may require, for good cause shown, may grant

an extension for a like additional period. An extension order

shall be filed, recorded and indexed before expiration of the prior [*2]

period. [Emphasis added]

Professor Vincent C. Alexander, in his 2006 Supplementary Practice Commentary (McKinney's Cons. Laws of NY, Book 7B, CPLR C6513:1) discusses the issue of a stale notice of pendency and properly admonishes that "[t]he prudent practitioner seeking to extend the life of a notice of pendency should take the directives of CPLR 6513 at face value and obtain the extension permitted by the statute well before expiration of the preceding three-year period."

CPLR § 6501 provides that the filing of a notice of pendency against a property is to give constructive notice to any purchaser of real property or encumbrancer against real property of an action that "would affect the title to, or the possession, use or enjoyment of real property, except in a summary proceeding brought to recover the possession of real property." Professor David Siegel, in NY Prac, § 334, at 535 [4th ed] observes about a notice of pendency that:

The plaintiff files it with the county clerk of the real property county,

putting the world on notice of the plaintiff's potential rights in the

action and thereby warning all comers that if they then buy the

property or lend on the strength of it or otherwise rely on the

defendant's right, they do so subject to whatever the action may

establish as the plaintiff's right.

The Court of Appeals, in 5303 Realty Corp. v O & Y Equity Corp. (64 NY2d 313, 315 [1984]), commented that "[a] notice of pendency, commonly known as a "lis pendens," can be a potent shield to litigants claiming an interest in real property." The Court, at 318-320, outlined the history of the doctrine of lis pendens back to 17th century England. It was formally recognized in New York courts in 1815 and first codified in the Code of Procedure [Field Code] enacted in 1848. At 319, the Court stated that "[t]he purpose of the doctrine was to assure that a court retained its ability to effect justice by preserving its power over the property, regardless of whether a purchaser had any notice of the pending suit," and, at 320, "the statutory scheme permits a party to effectively retard the alienability of real property without any prior judicial review."

In Israelson v Bradley (308 NY 511, 516 [1955]), the Court observed that with a notice of pendency a plaintiff who has an interest in real property has received from the State:

an extraordinary privilege which . . . upon the mere filing of the

notice of a pendency of action, a summons and a complaint and

strict compliance with the requirements of section 120 [of the Civil

Practice Act; now codified in CPLR §§ 6501, 6511 and 6512] is

required. Proper administration of the law by the courts requires

promptness on the part of a litigant so favored and that he accept

the shield which has been given him upon the terms imposed and

that he not be permitted to so use the privilege granted that it [*3]

becomes a sword usable against the owner or possessor of realty.

If the terms imposed are not met, the privilege is at an end.

Article 65 of the CPLR outlines notice of pendency procedures.

The Court, in Da Silva v Musso (76 NY2d 436, 442 [1990]), held that "the specific statutorily prescribed mechanisms for implementing this provisional remedy . . . were designed with a view toward balancing the interests of the claimant in the preservation of the status quo against the equally legitimate interests of the property owner in the marketability of his title." The Court of Appeals, quoted Professor Siegel, in holding that "[t]he ability to file a notice of pendency is a privilege that can be lost if abused' (Siegel, New York Practice § 336, at 512)." (In Re Sakow, 97 NY2d 436, 441 [2002]).

Further, the Sakow Court, at 442, instructed:

A notice of pendency is valid for three years from the date of

filing and may be extended for additional three-year periods upon a

showing of good cause (see CPLR 6513). The extension, however,

must be requested prior to the expiration of the prior notice (see id.).

This is an exacting rule; a "notice of pendency that has expired

without extension is a nullity" (13 Weinstein-Korn-Miller, NY Civ Prac

¶ 6513.04 [2000]; see Polish Natl. Alliance of Brooklyn v White Eagle

Hall Co., 98 AD2d 400, 405 [1983]; Robbins v Goldstein, 32 ¶AD2d

1047 [1969]).

Therefore, the Court cannot extend the expired notice of pendency in the instant action. However, "[a]s an exception to the general rule stated in Matter of Sakow, . . . a new notice of pendency may be filed in a mortgage foreclosure action despite the cancellation or expiration of a previous one (see Bankers Trust Co. of Cal. v Lifson, 5 AD3d 710 [2d Dept 2004]; Horowitz v Griggs, 2 AD3d 404, 406 [2d Dept 2003]; Campbell v Smith, 309 AD2d 581, 582 [1d Dept 2003]; Bergman, New York Mortgage Foreclosures ¶ 15.05 [2])." (Sears Mortgage Corp. v Yaghobi, 19 AD3d 402). For purposes of filing a new notice of pendency, "New York City Administrative Code § 11-335 provides that actions to foreclose tax liens shall be governed by the rules of practice applicable to actions to foreclose mortgages on real property.'" (NYCTL 1997-1 Trust v Oneg Shabbos, Inc., 5 AD3d 568 [2d Dept 2004]). (See Chiarelli v Kotsifos, 5 AD3d 345 [2d Dept 2004].

Accordingly, it is

ORDERED that the motion of plaintiffs, NYCTL 1998-1 TRUST AND THE BANK OF NEW YORK AS COLLATERAL AGENT AND CUSTODIAN, for an order to extend the November 23, 2005 notice of pendency in the tax lien foreclosure action for the premises located at 121 Powell Street, Brooklyn, New York (Block 3712, Lot 17, County of Kings), is denied; and it is further

ORDERED that leave is granted to plaintiffs, NYCTL 1998-1 TRUST AND THE BANK OF NEW YORK AS COLLATERAL AGENT AND CUSTODIAN, to file a new notice of [*4]pendency for the premises located at 121 Powell Street, Brooklyn, New York

(Block 3712, Lot 17, County of Kings).

This constitutes the Decision and Order of the Court.

ENTER

___________________________HON. ARTHUR M. SCHACKJ. S. C.