Opinion
July 5, 1961
In an action to set aside a transfer of real property as fraudulent, and for other relief, the plaintiffs appeal from an order of the Supreme Court, Suffolk County, dated March 10, 1961, which granted defendant Schwartz' motion to cancel as to him the lis pendens filed September 14, 1960, on the ground that said defendant, as the record owner of the property, was not served with the summons and complaint until more than 60 days after the filing of the lis pendens. Order reversed, with $10 costs and disbursements, and motion to cancel lis pendens denied. It is conceded that three of the four defendants were served within the 60-day period after the filing of the lis pendens. It is plaintiffs' claim that the real owner of the property is defendant P.R.S. Realty Corp. and that the other corporate defendant and the defendant Schwartz are fraudulent grantees. Since defendant P.R.S. Realty Corp. was served within the 60-day period, there was compliance with the intent of the statute (Civ. Prac. Act, § 120). In any event, the service of the summons and complaint on one of the several defendants within the 60-day period, even though that defendant was not the owner of the real property, was sufficient to prevent cancellation of the lis pendens ( Hudson Riv. Yards Corp. v. Morano Constr. Corp., 284 App. Div. 894). Insofar as this determination may be contrary to our earlier determination ( Steinmetz v. Kindred, 121 App. Div. 260), such earlier determination is overruled. Beldock, Acting P.J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.