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Perspectives

Spring

Expired Notice Of Pendency May Not Be Re-Filed

CPLR 6513 provides that a notice of pendency is effective for three years from the date of its filing. If a non-foreclosure action’s litigation remains pending as such period is ending, the filing party must seek relief before its expiration to extend it for an additional three years. Unlike its initial filing, which may be done by a litigant unilaterally, the extension requires court approval. In 25-35 Bridge St. LLC v. Excel Automotive Tech Center. Index No. 11088/2003 (Sup. Ct. Kings Co. Jan. 23, 2019), plaintiff’s predecessor-in-interest filed its initial notice of pendency in 2003 and the notice of pendency was extended until 2015, when it was allowed to expire. After allowing it to lapse, plaintiff filed a new notice of pendency in 2016. CPLR 6516(c) provides that, except in foreclosure actions, “a notice of pendency may not be filed in any action in which a previously filed notice of pendency affecting the same property has been cancelled or had expired…”. The court found that the new notice was invalid under the statute. The court rejected plaintiff’s attempt to “save” its new notice by contending that it was a proper successive notice based on changed circumstances since the original notice was filed. This case is a reminder that in protracted litigation, litigants and interested parties must keep careful track of the date on which a notice of pendency is due to expire so that a motion to extend it may be filed before the deadline and there is no inadvertent waiver of a party’s rights.