Recitation being made in accordance with CPLR 2219 (a), the following papers were read and considered on the New York State Courts Electronic Filing System ("NYSCEF") in connection with the motion by Defendant ISAAC G. JEGANATHAN, TRUSTEE OF THE JEGANATHAN FAMILY IRREVOCABLE TRUST to: (i) vacate and cancel the Notice of Pendency, pursuant to article 65 of the CPLR, filed by Plaintiff Michelle T. Molloy on December 17, 2024, as against the real property known as 8 October Lane, Mahopac, NY 10541; [*2](ii) a declaration that this action does not affect the determination of title to real property; and (iii) to impose court-ordered sanctions against Plaintiff Michelle T. Molloy, pursuant to 22 NYCRR 130-1.1:

• Notice of Motion; Counsel's Affirmation in Support

• Attorney Affirmation in Opposition; Exhibits 1-4

• Counsel's Affirmation in Reply; Exhibit A; Affirmation of David A. Nigrelli, Esq.; Proposed Order of Defendant Jeganathan

• Letter from Attorney David A. Nigrelli, Esq. (dated April 7, 2025)

• Letter from Plaintiff's Counsel (dated April 8, 2025)

Upon review of the aforesaid papers,^[FN1] the Court finds, holds, and determines as follows:

The plaintiff and defendants are homeowners who own neighboring houses on October Lane in the Hamlet of Mahopac, Town of Carmel. In 1987, plaintiff was deeded the real property known as 11 October Lane which, as relevant here, is subject to an easement in favor of others for access to Kennicut Hill Road over a 50-foot right-of-way.^[FN2] This 50-foot easement / right-of-way is over a certain portion of plaintiff's real property and is for all purposes of ingress and egress for the benefit of the defendants. The easement is the subject of this litigation.

Defendant Isaac G. Jeganathan, Trustee of the Jeganathan Family Irrevocable Trust (hereinafter referred to as "Jeganathan") was deeded the real property known as 8 October Lane in 2016 from his parents who were the prior owners. Jeganathan, along with the other defendants, are the dominant tenement owners and plaintiff is the servient tenant as it concerns the right-of-way.

Pursuant to a 1997 judgment issued after trial in this court (James D. Benson, J.H.O.), under Index No. 1995/1993, involving, among others, plaintiff and Jeganathan's parents (the prior owners of the premises known as 8 October Lane),^[FN3] plaintiff and her spouse (plaintiff's attorney in this case) are "permanently restrained and enjoined, directly or indirectly, from obstructing, interfering with, restricting or limiting [Jeganathan's] right to ingress and egress over and through" the right-of-way (see NY St Cts Elec Filing [NYSCEF] Doc No. 27, reply affirmation of counsel for defendant Jeganathan, exhibit A, in Molloy v. Jeganathan et al., Sup Ct, Putnam County, index No. 502218/2024).

On December 13, 2024, plaintiff commenced this action by filing a summons and verified complaint (see NYSCEF Doc No. 1, summons and complaint). Her sole claim is that [*3]defendants must equally contribute to the high costs of repairing and maintaining the right-of-way because the travel portion has fallen into complete despair from use over the years. Specifically, plaintiff avers that the right-of-way has never been paved since she acquired ownership of her home, that it is in a dangerous condition, and the defendants, including Jeganathan, must all equally pay for repavement and maintenance of the right-of-way which they each use and enjoy. Such is the impetus for plaintiff bringing this action.

On December 17, 2024, plaintiff filed a Notice of Pendency in connection with this action insofar as it concerns the right-of-way (see NYSCEF Doc No. 7).^[FN4] Subsequently, plaintiff filed an amended summons and amended verified complaint on February 19, 2025 (see NYSCEF Doc Nos. 8-9).

Plaintiff served the amended summons and complaint upon Jeganathan on March 8, 2025, by effectuating nail and mail service, pursuant to CPLR 308 (4), at his 8 October Lane premises. An affidavit of service reflecting same was filed on March 10, 2025 (see NYSCEF Doc No. 13, affidavit of service)^[FN5] — thus, service upon Jeganathan was deemed complete 10 days later, on March 20, 2025 (see CPLR 308 [4]; Trujillo v Collado, 217 AD3d 891, 892 [2d Dept 2023] ["Service via 'affix and mail' is complete 10 days after proof of service is filed with the court"]).

Jeganathan appeared in the action, through counsel, on March 18, 2025, when he filed the instant pre-answer motion, pursuant to article 65 of the CPLR, to vacate and cancel the Notice of Pendency in this action. Jeganathan's motion is predicated mainly on plaintiff's belated service of the summons upon him and noncompliance with CPLR 6512 (see CPLR 6514 [a]).

Plaintiff filed opposition papers to Jeganathan's motion on March 27, 2025. Jeganathan, in turn, filed reply papers on March 28, 2025.

The remaining defendants appeared in this action by interposing an answer on April 18, 2025, wherein they assert a single affirmative defense that the complaint fails to state a valid cause of action against them (see NYSCEF Doc No. 33, verified answer). On April 21, 2025, Jeganathan interposed an answer to the amended complaint, asserting therein eight affirmative defenses and three counterclaims against plaintiff (see NYSCEF Doc No. 34, verified answer). Setting aside these responsive pleadings, Jeganathan's motion is deemed fully submitted and ripe for determination.

A. The Notice of Pendency

Jeganathan, relying on CPLR 6514 (a), contends that the Court must cancel the Notice of Pendency due to plaintiff's failure to serve the summons upon him within the 30-day time limit proscribed in CPLR 6512. Jeganathan adds that he is attempting to sell his home (the premises known as 8 October Lane),^[FN6] pending a sale which is scheduled to close once all title exceptions have been cleared. According to Jeganathan, the subject Notice of Pendency filed by plaintiff is the sole outstanding exception to clear title in connection with selling his real property.

In opposition, plaintiff asserts that she filed the Notice of Pendency once she learned that Jeganathan was endeavoring to sell his home and she saw the property listed on the Multiple Listing Service ("MLS") as "pending" (NYSCEF Doc No. 20, affirmation of counsel for plaintiff in opp to mot ¶ 18-23). Crucially, plaintiff conceded that she chose not to serve Jeganathan with the commencement papers of this action "during the Christmas holidays," adding that Jeganathan's family has been her next-door neighbors since 1987 and Jeganathan's contract to sell his home "failed" because a prior prospective buyer did not qualify for financing (id. at ¶ 22). The Court shall proceed to first examine the function of a lis pendens before turning to the merits of Jeganathan's motion for mandatory cancellation of the Notice of Pendency.

"Article 65 of the CPLR sets forth the authority and procedural requirements for securing a notice of pendency. Once the notice has been properly filed with the county clerk where the property is situated, it puts the world on notice of the plaintiff's potential rights in the action and thereby warns all comers that if they then buy the realty 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" (Matter of Sakow, 97 NY2d 436, 440 [2002] [internal brackets, quotation marks, and citations omitted]). "This provisional remedy authorized by the Legislature 'evolved from the common-law doctrine of lis pendens'" (id., quoting 5303 Realty Corp. v O & Y Equity Corp., 64 NY2d 313, 318 [1984]).

"The usual object of filing a notice of lis pendens is to protect some right, title or interest claimed by a plaintiff in the lands of a defendant which might be lost under the recording acts in event of a transfer of the subject property by the defendant to a purchaser for value and without notice of the claim" (Braunston v Anchorage Woods, 10 NY2d 302, 305 [1961]). "A litigant's ability to file a notice of pendency is an 'extraordinary privilege because of the relative ease by which it can be obtained'" (Delidimitropoulos v Karantinidis, 142 AD3d 1038, 1040 [2d Dept 2016], quoting Matter of Sakow, 97 NY2d at 441); "and because it permits a party 'to effectively retard the alienability of real property without any prior judicial review'" (Delidimitropoulos v Karantinidis, 142 AD3d at 1040, quoting 5303 Realty Corp. v O & Y Equity Corp., 64 NY2d at 320).

"A notice of pendency may be filed in any action in a court of the state . . . in which the judgment demanded would affect the title to, incumbrance of, or the possession, use or enjoyment of, real property" (CPLR 6501). Succinctly restated, "CPLR 6501 permits a plaintiff who has commenced an action potentially affecting title to or the use and enjoyment of real [*4]property to file a notice of pendency, and thereby impair its marketability, as a matter of right" (Da Silva v Musso, 76 NY2d 436, 442 [1990] [emphasis omitted]).

CPLR 6512 states, in relevant part, that "[a] notice of pendency is effective only if, within 30 days after filing, a summons is served upon the defendant." "CPLR 6514 (a) provides for mandatory cancellation of a notice of pendency if service of a summons has not been completed within the time period set forth in CPLR 6512, which is 30 days after filing of the notice of pendency" (Deans v Sorid, 56 AD3d 417, 418 [2d Dept 2008]).

"Pursuant to CPLR 6514 (a), a court must direct the cancellation of a notice of pendency if service of a summons has not been completed within the time limited by CPLR 6512" (41st Rd. Props., LLC v Wang Real Prop., LLC, 232 AD3d 828, 830 [2d Dept 2024] [internal brackets and quotation marks omitted]; see Knopf v Sanford, 132 AD3d 416, 417 [1st Dept 2015]). A notice of pendency, as mentioned, is an "extraordinary privilege" demanding "strict compliance" with the applicable statutory requirements (see Slutsky v Blooming Grove Inn, 147 AD2d 208, 212 [2d Dept 1989] ["(c)ourts have consistently required strict compliance with the procedures set forth in CPLR article 65 for the filing of a notice of pendency"]).

Where, as here, plaintiff failed to strictly comply with the proscribed procedure and statutory requirements set forth in article 65 of the CPLR, "the notice [of pendency] must be canceled" (5303 Realty Corp. v O & Y Equity Corp., 64 NY2d at 320; see Rose v Montt Assets, 250 AD2d 451, 452 [1st Dept 1998]). Plaintiff initially filed the original summons and complaint on December 13, 2024, which she later amended on February 19, 2025.^[FN7] There is no question that Jeganathan, the owner of the 8 October Lane premises, was not served with the original summons within 30 days of the filing of the Notice of Pendency on December 17, 2024; therefore, the notice of pendency is invalid (see CPLR 6512; NYCTL 1999-1 Trust v Chalom, 47 AD3d 779, 780 [2d Dept 2008], lv denied 11 NY3d 709 [2008]). Plaintiff does not dispute this fact. The summons was not deemed served until March 20, 2025 — more than 30 days after the filing of the Notice of Pendency.

The Court holds that pursuant to CPLR 6512 and 6514 (a), cancellation of the Notice of Pendency is mandatory here because service of the summons was not completed within 30 days of plaintiff filing the Notice of Pendency. Therefore, the Court grants that branch of Jeganathan's motion to vacate and cancel the subject Notice of Pendency filed by plaintiff in this action (see CPLR 6512; 6514 [a]; Olden Group, LLC v 2890 Review Equity, LLC, 209 AD3d 748, 753 [2d Dept 2022]; Deans v Sorid, 56 AD3d at 418; see also King v Zapata, 84 Misc 3d 1266[A], *5 [Sup Ct, Kings County 2025]; Clear Blue Water, LLC v Winston, 23 Misc 3d 1123[A], *2 [Sup Ct, Suffolk County 2009]).^[FN8]

B. Jeganathan's Motion for a Declaration Pursuant to CPLR 6501

In light of the foregoing determination, that branch of Jeganathan's motion seeking a judicial declaration that this action does not affect the determination of title to real property under CPLR 6501 is rendered academic. Thus, the Court need not reach Jeganathan's remaining arguments in connection with this branch of his motion (see id.; see generally Clear Blue Water, LLC v Winston, 23 Misc 3d 1123[A], *2).

Although the Court notes that the complaint, as amended, does not seek to restrict the defendants' use or enjoyment of the right-of-way within the meaning of CPLR 6501, the Court declines to reach and address the issue of whether the complaint, on its face, seeks relief that "would affect the title to, incumbrance of, or the possession, use or enjoyment of, real property" (CPLR 6501). The undersigned need not decide this issue now because Jeganathan expressly moved for mandatory court cancellation of the Notice of Pendency on the ground that effective and proper service of the summons was not made upon him within 30 days of filing, as is required by CPLR 6512 (see CPLR 6514 [a]).

"Cancellation of a notice of pendency can be granted in the exercise of the inherent power of the court where the filing of the notice fails to comply with CPLR 6501" (Ewart v Ewart, 78 AD3d 992, 992 [2d Dept 2010] [emphasis added]). "When the court entertains a motion to cancel a notice of pendency in its inherent power to analyze whether the pleading complies with CPLR 6501, it neither assesses the likelihood of success on the merits nor considers material beyond the pleading itself; the court's analysis is to be limited to the pleading's face" (Mallek v Felmine, 227 AD3d 977, 978 [2d Dept 2024] [internal quotation marks and citations omitted]).

Here, the Court is not using its inherent judicial power to vacate a notice of pendency that does not allegedly comport with CPLR 6501; therefore, it is unnecessary to take the additional step of examining the original or amended complaint (see generally Nastasi v Nastasi, 26 AD3d 32, 36-39 [2d Dept 2005]).^[FN9] The Notice of Pendency is subject to mandatory cancellation under CPLR 6514 (a) in wake of Jeganathan's underlying motion. At this time, the Court expresses no view on the legal sufficiency of the complaint, as amended, and whether it comports with CPLR 6501.

C. Jeganathan's Motion for Sanctions Against Plaintiff

Lastly, Jeganathan moves to impose sanctions upon plaintiff for the arguably improper filing of the Notice of Pendency.^[FN10] Jeganathan's counsel avers that he had a telephone [*5]conversation with plaintiff's attorney on or about March 12, 2025, when the former requested the latter to voluntarily withdraw the Notice of Pendency to avoid unnecessary motion practice; however, plaintiff's attorney refused to do so (see affirmation of counsel for defendant Jeganathan in support of mot ¶ 20-21).^[FN11] Jeganathan thus argues that plaintiff's blatant refusal to withdraw the purportedly improper Notice of Pendency constitutes frivolous conduct that is sanctionable under 22 NYCRR 130-1.1 (see id. at ¶ 22-23).

Plaintiff does not squarely address Jeganathan's motion for sanctions in her opposition papers. This branch of his motion shall be held in abeyance pending a hearing for further argument and proceedings.

Pursuant to 22 NYCRR 130-1.1 (a), a court, "in its discretion, may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct." "[C]onduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification[,] or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false" (22 NYCRR 130-1.1 [c] [emphasis added]). "It is also important that under 22 NYCRR 130-1.1 (c), a court considering sanctions against a party or attorney must consider whether the alleged frivolous conduct was continued when its lack of merit was or should have been apparent to the party or attorney" (Yenom Corp. v 155 Wooster St. Inc., 33 AD3d 67, 73 [1st Dept 2006]; see Whelan v Busiello, 219 AD3d 778, 780-781 [2d Dept 2023], lv dismissed 40 NY3d 1090 [2024]).

Under the circumstances of this case, the current procedural posture, and considering the early stage of this action, the Court elects to hold a hearing with respect to that branch of Jeganathan's motion, made pursuant to 22 NYCRR 130-1.1, to sanction plaintiff in the form of costs for frivolous conduct. Six days before making the instant motion, Jeganathan's counsel advised plaintiff's attorney that the Notice of Pendency was improperly filed and requested withdrawal of it in order to avoid motion practice. Plaintiff declined to do so and her counsel does not deny this fact.

Because the Court has not analyzed and ruled on the legal sufficiency of plaintiff's pleading and whether it comports with CPLR 6501, the Court has not made a further legal determination as to whether this matter constitutes an action in which the final "judgment demanded would affect title to, or the possession, use, or enjoyment of, real property" (DeCaro v East of E., LLC, 95 AD3d 1163, 1164 [2d Dept 2012]; see Preston v Nichols, 216 AD3d 1398, 1400 [4th Dept 2023]). A declaration or determination in that regard may well impact Jeganathan's motion to sanction plaintiff.

Although Jeganathan expressly requests sanctions against plaintiff in his motion papers, and plaintiff was afforded an opportunity to be heard and opposed the motion, Jeganathan's moving papers do not detail the amounts of costs in the form of reimbursement for actual [*6]expenses reasonably incurred and reasonable attorney's fees that should be awarded to him stemming from plaintiff's filing of the Notice of Pendency. The Court requires additional information on the narrow issue of whether plaintiff should be sanctioned for frivolous conduct related to the continued prosecution of the Notice of Pendency. A hearing and further determination is warranted on those issues (see NJCC-NYS Community Restoration Fund, LLC v Ruiz, 228 AD3d 771, 772 [2d Dept 2024]; Whelan v Busiello, 219 AD3d at 781; Delidimitropoulos v Karantinidis, 142 AD3d at 1040; see also King v Zapata, 84 Misc 3d 1266[A], *6; Clear Blue Water, LLC v Winston, 23 Misc 3d 1123[A], *2; cf. Nikolla v Lieke, 35 Misc 3d 1229[A], *2 [Sup Ct, Queens County 2012]).

For these reasons, that branch of Jeganathan's motion to sanction plaintiff shall be held in abeyance pending a hearing for further argument and proceedings. When scheduled, plaintiff's attorney, Mr. John Gifford Molloy, shall be directed to appear at the hearing since he filed the Notice of Pendency on behalf of plaintiff.

To the extent not specifically mentioned herein, the parties' remaining contentions have been evaluated and determined to be without merit. Any other relief requested that is not squarely addressed herein is either rendered academic or denied based on this decision. Accordingly, it is hereby:

Ordered that the underlying motion of Defendant ISAAC G. JEGANATHAN, TRUSTEE OF THE JEGANATHAN FAMILY IRREVOCABLE TRUST (Mot. Seq. No. 1), is granted in part and denied in part, to the extent specifically set forth herein; and it is further

Ordered that that branch of defendant JEGANATHAN's motion to vacate and cancel the Notice of Pendency, pursuant to article 65 of the CPLR, filed by Plaintiff Michelle T. Molloy on December 17, 2024, as against the real property known as 8 October Lane, Mahopac, NY 10541, is GRANTED; and it is further

Ordered that the Notice of Pendency, dated December 16, 2024, filed in the Office of the Clerk of the County of Putnam on December 17, 2024 (NYSCEF Doc No. 7) in Liber 131, page 181 of Lis Pendens, and as indexed against the premises known and designated as 8 October Lane, Mahopac, New York, 10541, in the Town of Carmel, Section 76.15, Block 1, Lot 11, is hereby cancelled, annulled, and vacated, effective immediately; and it is further

Ordered that the Clerk of the County of Putnam shall mark upon the margin of his records the notation "vacated and cancelled" with a reference to this Order; and it is further

Ordered that that branch of defendant JEGANATHAN's motion, made pursuant to 22 NYCRR 130-1.1, to impose court-ordered sanctions against Plaintiff Michelle T. Molloy shall be held in abeyance, pending a hearing in accordance with this Decision; and it is further

Ordered that defendant JEGANATHAN shall cause a copy of this Decision and Order be served, with notice of entry, within ten (10) days from the date herein and electronically file proof of such service on the NYSCEF system; and it is further

Ordered that the attorneys shall appear for a preliminary conference before the undersigned on Friday, May 30, 2025, at 10 a.m.

The foregoing decision constitutes the order of the Court.