Steel-Crete Homes Co. v. Roseth Realty Co.

228 A.D. 723

Opinion

Order granting motion of defendant Fior Pellegrino to cancel notice of pendency of action upon the filing of an undertaking in the sum of $10,000 reversed upon the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Under the complaint herein, the real property in suit and not the value thereof is sought to be recovered. There is nothing in the complaint which fixes any sum, or is the basis for the fixing of any sum, which will adequately compensate the plaintiff for the loss of the real property. Since adequate relief cannot be secured to the plaintiff by a deposit of money or the giving of an undertaking, the motion to cancel the notice of pendency of action must be denied. (Weingarten v. Minskoff, 204 App. Div. 750; Wolinsky v. Okun, 111 id. 536.) Lazansky, P. J., Rich, Kapper, Carswell and Seudder, JJ., concur.