Recitation in accordance with CPLR 2219 (a) of the papers considered on the order to show cause filed on April 3, 2025, under motion sequence number one, by KNJ Realty, Inc (hereinafter the movant) for an order: (a) pursuant to CPLR 3211 (a) (8) and CPLR 306-b dismissing the complaint of Moon Convenience and Deli, Inc., and Sarat Parvaz (hereinafter the plaintiffs) for failure to properly and timely serve the movant; (b) pursuant to CPLR 3211 (a) (7) dismissing the complaint for failure to state a cause of action against KNJ Realty Inc; (c) pursuant to CPLR 6514 (a) and/or (b) canceling the notice of pendency and (d) awarding the movant costs and expenses in bringing this motion as well as costs for the cancelation of the notice of pendency. The motion is unopposed

Exhibits 1-6

On July 17, 2024, the plaintiffs commenced the instant action by filing a summons, complaint and notice of pendency (hereinafter the commencement papers) with the Kings County Clerk's office (KCCO).

The complaint alleges fifty-four allegations of fact in support of two causes of action. The first cause of action seeks specific performance of a commercial lease giving the plaintiff a right of first refusal for a specific commercial real estate property in Brooklyn. The second cause of action is for breach of the commercial lease.

On January 6, 2025, the plaintiffs filed two identical affirmations of service of the commencement papers with the KCCO. The two identical affidavits of services averred service of the commencement papers on the movant on January 3, 2025, via service upon the New York State Secretary of State.

The movant has made the instant order to show cause pre-answer.

There is no dispute that on July 17, 2024, the plaintiff filed the commencement papers in the instant action with the KCCO. There is also no dispute that on January 3, 2025, the plaintiffs served the commencement papers on the movant via service upon the New York State Secretary of State.

The movant was properly served with the summons and complaint and notice of pendency by service on the Secretary of State (see CPLR 311 [a] [1]; see Business Corporation Law § 306 [b] [1]; see NYCTL-1 Trust v Liberty Bay Realty Corp., 21 AD3d 1013, 1014 [2d Dept 2005]). Service of process on the movant was completed on September 3, 2025, upon delivery of process to the Secretary of State (Business Corporation Law § 306 [b] [1]; see Perkins v 686 Halsey Food Corp., 36 AD3d 881, 881 [2d Dept 2007]).

CPLR 6512 provides in pertinent part as follows:

"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."

"CPLR 306-b requires that service of the summons and complaint or summons with notice 'shall be made within one hundred twenty days after the commencement of the action or proceeding'" (Purzak v Long Is. Hous. Servs, Inc., 149 AD3d 989 [2d Dept 2017]; CPLR 306-b). "If service is not made upon a defendant within the time provided in [CPLR 306-b], the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service" (OneWest Bank N.A. v All the Heirs at Law, — NYS3d —, 2025 NY Slip Op 04258 *1 [2d Dept 2025]).

Contrary to the requirements of CPLR 306-b, the plaintiffs did not effectuate service of the commencement papers upon the defendant within one hundred twenty days after the commencement of the action. In fact, service was effectuated one hundred and seventy days after the commencement of the action. The plaintiffs neither opposed the order to show cause nor sought an extension of time to serve the commencement papers upon the movant. Consequently, the action may be dismissed.

Also, contrary to the requirements of CPLR 6512 the plaintiffs did not serve the summons upon the movant within thirty days after it was filed. Consequently, the notice of pendency is ineffective and must be vacated.

"In a case involving a mandatory cancellation of a notice of pendency due to a belated service of the summons, the defendant's costs and expenses may be awarded pursuant to CPLR 6514 (c), even in the absence of subjective bad faith on the part of the plaintiffs" (King v Zapata, 84 Misc 3d 1266[A] [Sup Ct, 2025]), citing National Auditing Servs & Consulting, LLC v Assa, 217 AD3d 503, 504 [1st Dept 2023], citing Knopf v Sanford, 132 AD3d 416, 418 [1st Dept 2015]).

The movant is directed to file with the NYSCEF system an affidavit or affirmation setting forth the movant's costs and expenses on or before September 9, 2025. This branch of the movant's motion will be heard on October 9, 2025.

The branch of the motion by KNJ Realty, Inc for an order dismissing the complaint of Moon Convenience and Deli, Inc., and Sarat Parvaz for failure to properly and timely serve the complaint pursuant to CPLR 3211 (a) (8) and CPLR 306-b is granted.

The branch of the motion by KNJ Realty, Inc for an order canceling the notice of pendency pursuant to CPLR 6512 is granted.

The branch of the motion by KNJ Realty, Inc for an order awarding it the costs and expenses in bringing the motion is granted to the extent that it is directed to file on or before September 9, 2025, an affidavit or affirmation setting forth its costs and expenses. This branch of the movant's motion will be heard on October 9, 2025.

The foregoing constitutes the decision and order of this Court.