Rubinfeld v. Mappa

New York Supreme Court

Rubinfeld v. Mappa

42 Misc. 2d 464, 248 N.Y.S.2d 276, 1964 N.Y. Misc. LEXIS 2027

CourtNew York Supreme Court

DecidedFebruary 27, 1964

StatusPublished

Cited by5 cases

This text of 42 Misc. 2d 464 (Rubinfeld v. Mappa) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rubinfeld v. Mappa, 42 Misc. 2d 464, 248 N.Y.S.2d 276, 1964 N.Y. Misc. LEXIS 2027 (N.Y. Super. Ct. 1964).

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Opinion

Murray T. Feiden, J.

This is a motion to cancel a lis pendens filed by plaintiff in a derivative stockholders’ action. The issue is whether the complaint states a cause of action affecting title to real property within the meaning of section 6501 of the Civil Practice Law and Rules.

The mere fact that the word “ realty ” or similar words are used in the complaint or that one of the prayers for relief seeks a transfer of title to realty, is not determinative unless supported by appropriate allegations. It is not the title of the action, nor the prayer for judgment, but the facts set out in the complaint which determine the kind and character of the action (Weisinger v. Rae, 19 Misc 2d 341). The gravamen of the complaint herein is waste of corporate assets rather than title to property within the meaning of section 6501 of the Civil Practice Law and Rules; (Gross v. Price, 283 App. Div. 1107; Hyde v. Van Kleeck & Co., 17 Misc 2d 375; Weisinger v. Rae, supra).

An examination of the record on appeal in the case of Gross v. Price (supra), in which the cancellation of the Us pendens was affirmed by the Appellate Division, discloses a situation and a complaint very similar to the case at bar. The court held that the action was not the type of action contemplated in section 120 of the Civil Practice Act, now section 6501 of the Civil Practice Law and Rules. Motion granted.

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Murray T. Feiden, J.

This is a motion to cancel a lis pendens filed by plaintiff in a derivative stockholders’ action. The issue is whether the complaint states a cause of action affecting title to real property within the meaning of section 6501 of the Civil Practice Law and Rules.

The mere fact that the word “ realty ” or similar words are used in the complaint or that one of the prayers for relief seeks a transfer of title to realty, is not determinative unless supported by appropriate allegations. It is not the title of the action, nor the prayer for judgment, but the facts set out in the complaint which determine the kind and character of the action (Weisinger v. Rae, 19 Misc 2d 341). The gravamen of the complaint herein is waste of corporate assets rather than title to property within the meaning of section 6501 of the Civil Practice Law and Rules; (Gross v. Price, 283 App. Div. 1107; Hyde v. Van Kleeck & Co., 17 Misc 2d 375; Weisinger v. Rae, supra).

An examination of the record on appeal in the case of Gross v. Price (supra), in which the cancellation of the Us pendens was affirmed by the Appellate Division, discloses a situation and a complaint very similar to the case at bar. The court held that the action was not the type of action contemplated in section 120 of the Civil Practice Act, now section 6501 of the Civil Practice Law and Rules. Motion granted.

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Bluebook (online)

42 Misc. 2d 464, 248 N.Y.S.2d 276, 1964 N.Y. Misc. LEXIS 2027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rubinfeld-v-mappa-nysupct-1964.

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