A notice of pendency is a publicly filed document that gives notice to the world that an action is pending involving a dispute over some right, title, or interest in or to a parcel of real property. Specifically, CPLR 6501 permits the filing of a notice of pendency in any action “in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property, except in a summary proceeding brought to recover the possession of real property.” Once recorded, a notice of pendency clouds the marketability of title of the affected property for the duration of the underlying lawsuit, or until it is discharged.
For decades, courts have issued conflicting decisions on whether a tenant may file a notice of pendency in a landlord/tenant leasehold dispute. At first glance, such a dispute can involve “possession, use or enjoyment of, real property.” Yet, courts have long held that a lease is considered personalty, not real property (see, e.g., Matter of Grumman Aircraft Eng’g v. Bd. of Assessors of Town of Riverhead, 2 N.Y.2d 500, 507 (1957)), which would take lease disputes out of the statute’s ambit. Despite seemingly settled precedent on this point, the Appellate Division, First Department (Lawlor v. 543 Second Ave., 49 A.D.3d 449 (1st Dept. 2008); Casanas v. Carlei Group, 105 A.D.3d 570 (1st Dept. 2013)) and Second Department (Robert Fiance Hair Design Inst. v. Concourse Props. Co., 130 A.D.2d 564 (2d Dept. 1987)) have upheld notices of pendency filed in lease disputes based on the statute’s language regarding “possession, use or enjoyment of, real property” where the underlying “real property” at issue was the space leased by a landlord to a tenant.
