By: WBG, LLP Published: September 2012

Notice of pendency cannot be extended after it expires.

On June 13, 2012, the Second Department of the Appellate Division of the Supreme Court of the State of New York issued a decision holding that a lapsed notice of pendency cannot be extended.

In Ampul Electric, Inc. v. Village of Port Chester, 96 A.D.3d 790 [2d Dept. 2012], the mechanic's lien foreclosure action was commenced in October 2006 and a notice of pendency was filed at that time. A notice of pendency is required to extend a lien and to maintain a public lien foreclosure action, but it expires after 3 years unless an application is filed to extend the notice of pendency for another 3 years for good cause.

The Supreme Court judge stayed the lien foreclosure action in March of 2009 because one of the parties filed for bankruptcy. In June of 2010, the lienor withdrew its claims in the Bankrupcty Court. In July 2010, the lienor moved in the Supreme Court to extend the notice of pendency nunc pro tunc (i.e., "now for then", or retroactively). The defendants filed a cross-motion to cancel the notice of pendency. The Supreme Court denied the lienor's motion and granted the defendants' cross-motion to cancel the notice of pendency.

The Second Department affirmed the Supreme Court, finding that an expired notice of pendency is a nullity and may not be revived. Pursuant to CPLR 6513, the notice of pendency had to be extended before it lapsed. Here, the notice of pendency expired in October 2009 such that the application to extend it was untimely. Since the stay of the action did not appear to apply to the notice of pendency, notices of pendency should be extended before they lapse even when an action has been stayed. Even though you may not be able to prosecute your action or lien, you will have to incur legal fees to maintain your action alive even during a stay.

N.B. This decision applies to Notices of Pendency in connection with PRIVATE liens. Those in connection with PUBLIC liens are extended 3+ years; i.e., permanently. See Yula, 342 NYS2 673 and Belt, 457 NYS2 632 (3rd, 1982); 469 NYS2 1023 (lv. to app. den'd).

If you would like more information on this issue or any other construction issue, please contact Welby, Brady & Greenblatt, LLP.

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