§ 1347 — Motion for cancellation of notice of pendency

§ 1347. Motion for cancellation of notice of pendency. 1. Mandatory\ncancellation. The court, upon motion of any person aggrieved and upon\nsuch notice as it may require, shall direct any county clerk to cancel a\nnotice of pendency, if service of a summons has not been completed\nwithin the time limited by section one thousand three hundred forty-five\nof this article; or if the action has been settled, discontinued or\nabated; or if the time to appeal from a final judgment against the\nclaiming authority has expired.\n 2. Discretionary cancellation. The court, upon a motion of any person\naggrieved and upon such notice as it may require, may direct any county\nclerk to cancel a notice of pendency, if the claiming authority has not\ncommenced or prosecuted the action in good faith.\n 3. Costs and expenses. The court, in an order canceling a notice of\npendency under this section, may direct the claiming authority to pay\nany costs and expenses occasioned by the filing and cancellation, in\naddition to any costs of the action. In order to establish the claiming\nauthority's liability for such costs and expenses, the person seeking\nsuch costs and expenses must prove by a preponderance of the evidence\nthat, in causing the notice to pendency to be filed, the claiming\nauthority acted without reasonable cause and not in good faith.\n 4. Cancellation by stipulation. At any time prior to entry of\njudgment, a notice of pendency shall be cancelled by the county clerk\nwithout an order, on the filing with him or her of:\n (a) An affidavit by the claiming authority showing which defendants\nhave been served with process, which defendants are in default in\nappearing or answering, and which defendants have appeared or answered\nand by whom; and\n (b) A stipulation consenting to the cancellation, signed by the\nclaiming authority and by the attorneys for all the defendants who have\nappeared or answered including those who have waived all notices, and\nexecuted and acknowledged, in the form required to entitle a deed to be\nrecorded, by the defendants who have been served with process and have\nnot appeared but whose time to do so has not expired, and by any\ndefendants who have appeared in person.\n 5. Cancellation by a claiming authority. At any time prior to the\nentry of a judgment a notice of pendency of action shall be cancelled by\nthe county clerk without an order on the filing with him or her of an\naffidavit by the claiming authority showing that there have been no\nappearances and that the time to appear has expired for all parties.\n