Da Silva v. Musso

559 N.E.2d 1268, 76 N.Y.2d 436, 560 N.Y.S.2d 109, 1990 N.Y. LEXIS 1360
CourtNew York Court of Appeals
DecidedJune 12, 1990
StatusPublished
Cited by100 cases

This text of 559 N.E.2d 1268 (Da Silva v. Musso) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Da Silva v. Musso, 559 N.E.2d 1268, 76 N.Y.2d 436, 560 N.Y.S.2d 109, 1990 N.Y. LEXIS 1360 (N.Y. 1990).

Opinion

OPINION OF THE COURT

Titone, J.

This appeal concerns the rights of the parties and the operation of the notice of pendency procedures prescribed by CPLR article 65 after an action seeking to "affect the title to, or the possession, use or enjoyment of, real property” has terminated in a final judgment or order dismissing the claimant’s complaint. Specifically, we are asked to decide whether a purchaser for value who has actual notice that the unsuccessful claimant has appealed may nonetheless take clear title to the property where the claimant’s previously filed notice of pendency was canceled pursuant to CPLR 6514 (a). After considering both the statutory language and the underlying policies, we hold that the purchaser’s actual knowledge of a pending appeal is not legally significant and that, in the absence of an outstanding valid notice of pendency, the owner’s ability to transfer clear title to the disputed property remains unimpaired.

The facts underlying this dispute are fully discussed in our prior opinion (Da Silva v Musso, 53 NY2d 543, 546-547). In brief, in 1978 defendants Musso and Partridge entered into an [439]*439agreement to sell plaintiff an apartment building located in Queens County. When they reneged on this agreement, plaintiff filed a notice of pendency pursuant to CPLR article 65 and commenced an action for, inter alia, specific performance. This action initially resulted in a judgment directing specific performance, but the Appellate Division subsequently reversed the judgment and dismissed the complaint, holding that specific performance was too drastic a remedy under the circumstances (76 AD2d 879). Plaintiff promptly appealed to the Court of Appeals, but did not obtain a CPLR 5519 stay. Consequently, on motion made under CPLR 6514 (a), his notice of pendency was canceled.

Shortly thereafter, Musso and Partridge contracted to sell the property to defendant Ross Howard Realty Corp., which, in turn, assigned the contract to defendant Uzi Realty Corp., the agent for defendant Sun Place Realty Corp. (Sun Place). It is undisputed that all concerned had actual knowledge of plaintiffs pending appeal. Nonetheless, the transaction was consummated and the property was conveyed to Sun Place on September 1, 1981, some nine days before plaintiffs appeal was scheduled to be argued. The argument went forward as scheduled and on October 20, 1981, this court handed down its decision reversing the Appellate Division order and reinstating the trial court judgment (53 NY2d 543, supra).

Plaintiff subsequently commenced the present action seeking, among other things, a declaration that the deed conveying the property to Sun Place was void in light of the Court of Appeals decision. In response, defendants argued that the cancellation of plaintiffs notice of pendency freed the property from further claims by plaintiff, enabling its owners to convey clear title. The trial court rejected defendants’ argument and granted plaintiff a declaration invalidating Sun Place’s deed. The Appellate Division upheld this result, reasoning that, notwithstanding the cancellation of the notice of pendency, Sun Place took title "subject to” the outcome of plaintiffs appeal because of its actual knowledge of that appeal. We now reach the contrary conclusion and reverse.

Under well-established common-law principles, a purchaser of real property is bound by the consequences of a lawsuit of which he has actual knowledge (see, e.g., Dingley v Bon, 130 NY 607; Patterson v Brown, 32 NY 81; Skeel v Spraker, 8 Paige Ch 182; 7A Weinstein-Korn-Miller, NY Civ Prac If 6501.12, at 65-31-65-32). Additionally, CPLR 6501 authorizes [440]*440a party who has commenced an action "in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property” to file a notice of pendency against the property and thereby bind a subsequent purchaser to the outcome of the action "to the same extent as if he were a party.”1 Once the litigation has terminated in a final judgment dismissing the complaint, the status of the notice of pendency is governed by CPLR 6514 (a), which provides for its mandatory cancellation, "upon motion of any person aggrieved,” when either the time for appealing has expired or, notwithstanding the pendency of a timely taken appeal, the enforcement of the adverse judgment or order has not been stayed pursuant to CPLR 5519.

Our analysis begins with the principles governing the effect of final judgments and orders. It is elementary that a final judgment or order represents a valid and conclusive adjudication of the parties’ substantive rights, unless and until it is overturned on appeal. Furthermore, while an appeal from a final judgment or order may leave an inchoate shadow on the rights defined therein, those rights are nonetheless fully enforceable in the absence of a judicially issued stay pending disposition of the appeal (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C5519:l, at 184-185; see also, 5 W einstein-Kor n-Miller, op. cit, jf 5011.03, at 50-86-50-87 ["(t)he pendency of an appeal does not render an otherwise final judgment interlocutory”]). Since the ability to transfer clear title is a natural incident of ownership, it follows that when a complaint involving title to or the right to possess and enjoy real property has been dismissed on the merits and there is no outstanding notice of pendency or stay, the property owner has a right to transfer or otherwise dispose of the property unrestricted by the dismissed claim.

This principle is reflected in CPLR 5523, which furnishes the primary remedy for the successful appellant when an unstayed judgment or order that has been wholly or partially enforced during pendency of an appeal is subsequently re[441]*441versed or modified (see, Siegel, Practice Commentaries, op. cit, C5523:l, at 417). Under that provision, an appellate court "may order restitution of property or rights lost by [enforcement of a] judgment or order, except that where the title of a purchaser in good faith and for value would be affected, the court may order the value or the purchase price restored” (emphasis supplied). The italicized language clearly limits the court’s options to monetary relief in cases where the owner has exercised his rights under the unstayed judgments and transferred the property to a "good faith” purchaser for value. The provision’s effect is to insulate the title of a person who purchased after entry of final judgment from the effects of an appellate reversal, at least in the absence of an outstanding notice of pendency.

Plaintiff does not quarrel with these basic principles, but instead takes the position that a purchaser who has actual knowledge of a pending appeal affecting title to the property does not qualify as one acting with "good faith” within the meaning of CPLR 5523. The argument is belied, however, by the holding in Revelone, Inc. v Arlind Realty Corp. (274 App Div 656, affd 299 NY 667), in which sections 5862 and 5873 of the Civil Practice Act, the predecessors to CPLR 5223 and 6514 (a), were construed. In that case, the court held in circumstances analogous to these that a purchaser with actual knowledge of a claimant’s pending appeal nonetheless acquired clear title where the conveyance occurred at a time when there was no outstanding notice of pendency. Although, as the courts below noted, the statutory language relied on in Revelone

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Bluebook (online)
559 N.E.2d 1268, 76 N.Y.2d 436, 560 N.Y.S.2d 109, 1990 N.Y. LEXIS 1360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/da-silva-v-musso-ny-1990.