Isaias v. Fischoff

37 A.D.2d 934, 326 N.Y.S.2d 291, 1971 N.Y. App. Div. LEXIS 3069

Opinion

Order, Supreme Court, New York County, entered July 30, 1971, denying defendant Ungar’s motion dated July 14, 1971 seeking to vacate the original and subsequent notices of pendency unanimously modified, on the law and the facts, to the extent only of vacating the original lis pendens filed on May 7, 1968, and, as so modified, affirmed. Two orders of said court entered on July 30, 1971, denying defendant Ungar’s motions to dismiss the complaint and vacate the order of receivership unanimously affirmed. Plaintiff-respondent shall recover of defendant-appellant one bill of $50 costs and disbursements of .this appeal. Section 1331 of the Real Property Actions and Proceedings Law requires that in an ■action to foreclose a real property mortgage, as here, a lis pendens must be filed at least 20 days before final judgment of foreclosure and sale is rendered. Thus, we perceive that the filing of a lis pendens is requisite to the entry of a final judgment. (Robbins v. Goldstein, 36 A D 2d 730.) But in the instant case, a reference is in progress, and the entry of final judgment is not yet. Consequently, for the reasons explicated in Bobbins (supra), the filing of a new lis pendens was lawful and .timely; and on this record there is no basis for impeding the progress of the foreclosure action, particularly in view of the course of action charted by appellant subsequent to our previous decision reported at 37 A D 2d 702. Concur—-McGrivern, J. P., Markewich, Murphy, Steuer and Tilzer, JJ.