416 Properties Inc. v. Stampler

19 A.D.2d 801, 243 N.Y.S.2d 321, 1963 N.Y. App. Div. LEXIS 3171

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 3, 1963
• Status: Published

Opinion

Order, entered on August 6, 1963, vacating lis pendens, unanimously reversed, on the law, with $20 costs and disbursements to the appellant, and motion by defendant to vacate lis pendens denied. Plaintiff seeks to declare null and void an agreement of easement affecting an alley one half owned by each party. Plaintiff may file a lis pendens under section 6501 of the Civil Practice Law and Rules (formerly Civ. Prae. Act, § 120) because the action is brought to recover a judgment “ affecting the title to, or the possession, use, or enjoyment of real property”. (See Schomacker v. Michaels, 189 1ST. Y. 61, especially 64-65; Lafayette Forwarding Co. v. Rothbart Garage Operators, 205 App. Div. 247.) Braunston v. Anchorage Woods (10 N Y 2d 302) is distinguishable in that it involved only a nuisance, that is, a remedy for tort. Thus, the issue there was unrelated to the title, possession, use or enjoyment of defendant’s land, in the property sense of those terms. While in this ease a trespass is involved contingently, the central issue is that involving a property interest, namely, an easement. Concur — Botein, P. J., Breitel, Rabin, Eager and Steuer, JJ.